
    The People of the State of New York, Respondent, v. The Erie Railroad Company, Appellant.
    Second Department,
    December 10, 1909.
    Constitutional law—interstate commerce—rights of State and Federal Legislatures — carrier — limiting hours of employment of telegraph operator — when Federal act exclusive.
    The jurisdiction of the State and Federal Legislatures over interstate commerce within the State is concurrent, but when Congress has dealt with the subject its action is supreme and exclusive. Congress having passed an act that no telegraph operator on a railroad who delivers orders pertaining to trains shall remain on duty more than nine hours in twenty-four, and which provides that the act shall not become effective for a year from its passage, the State Legislature is without power to enact within the year a statute covering the same subject and limiting the time of employment to eight hours.
    Although the Federal act prescribes a maximum time, a provision of said State statute limiting the time to a shorter period is inconsistent therewith.
    The Federal act was effective as a declaration of the purpose and intention of Congress as soon as passed, and the fact that it did not take effect until a year later did not give the State Legislature power to pass an act in the-meanwhile. The fact that telegraph operators have to do with the movements of both interstate and intrastate trains does not make the Federal act unconstitutional.
    Appeal by the defendant, The Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 3d day. of December, 1908, upon the decision of the court rendered after a trial before the court without a jury at the Rockland Trial Term, held by stipulation at. the chambers of the presiding justice in Westchester county.
    
      George N. Orcwtt \_George F. Brownell with him on the brief], for the appellant.
    
      Edward R. O'Malley, Attorney-General [.Edward H. Letch-worth with him on the brief], for the respondent.
   Miller, J.:

This is an action to recover a fine for an alleged violation of section 7a of the Labor Law (Gen. Laws,.chap. 32; Laws of 1897, chap. 415), added by chapter 627 of the Laws of 1907, which became a law July 19, 1907, and took effect October 1, 1907. The alleged violation consisted in requiring or permitting, on November 1,1907, a telegraph operator in charge of a block signal station to be on duty for more than eight hours in a day of twenty-four hours.

The validity of the act is challenged on several grounds, but, in my view of the case, it is necessary to consider, but one. Congress passed an act covering the same subject, which was approved on March 4, 1907. So far as material to the question before us, that act provided: “No operator, train despatcher, or other employee who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four-hour period in all towers, offices, places and stations continuously operated night and • day.” (34 U. S. Stat. at Large, 1416, § 2.) The act provided that it should not take effect until one year after its passage.. (Id. .1417, § 6.) The defendant is an interstate carrier, and the work of ■ the particular operator in question had to do with interstate trains.

I shall assume, for the purposes of this discussion, indeed my own view is, that apart from the question' now to be discussed, the State lias the undoubted right in the-exercise of the police.power to provide for the welfare and safety of the public by limiting the hours of labor of railroad employees whose work involves the safety of the public,'and that the discrimination between different classes of .employees made. by the statute is not arbitrary but rests on a reasonable basis. But there can be no doubt that,,so far as interstate commerce may be affected, the jurisdiction of the State and the Federal Legislatures is concurrent-; and that is the position taken by the learned Attorney-General. However, he asserts that the acts of Congress and the State Legislature may both be efféctive even where interstate commerce is involved, that there is no inconsistency between the two, and that in any event the act of Congress was not in force when the State act was passed or when the offense charged was committed. It is not questioned that, if Congress: sees fit to deal with a subject over which it and the State Legislature have concurrent jurisdiction, its action is suprercje and exclusive. It is unnecessary to cite authority in support of that proposition. It is based on an express provision of the Federal Constitution and is required by the necessities of the case.for, obviously, it would not do to have one rule prescribed by Congress and another by the State. The latter must yield to the former. Now, before the act in question was passed, Congress had passed an act covering precisely the same ground, limiting the time that the class of employees in question should be required or permitted to work to nine hours out of twenty-four. It is contended that, as only a maximum time was prescribed, an act limiting the time to a shorter period is not inconsistent therewith. But that contention loses sight of the fundamental question upon which the exercise of jurisdiction, which the State Legislature possesses concurrently with Congress, depends. Where the jurisdiction of Congress is exclusive, non-action by it shows an intention on its part, that the subject shall be free from restriction. Where jurisdiction is concurrent, non-action shows an intention to leave the matter to be dealt with by the State Legislatures; but action, which prescribes the rule to govern a particular case, shows an intention of Congress to deal with that case to the exclusion of the State Legislatures, and any different rule prescribed by the latter is inconsistent therewith. The cases cited by the Attorney-General do not support his contention. Sinnot v. Davenport (22 How. [U. S.] 227) decides exactly to the contrary. In that case Hr. Justice Nelson did say: “ We agree, that in the application of this principle of supremacy of an act of Congress in a case where the State law is but the exercise of a reserved power, the repugnance or conflict should be direct a¡nd positive, so that the two acts could not be reconciled or consistently stand together.” But two acts, covering the same subject and prescribing different rules, are “repugnant” within the meaning of that word as used in the above quotation, as is shown by a uniform, line of decisions of the United States Supreme Court- (See Sherlock v. Alling, 93 U. S. 99; Covington, etc., Bridge Co. v. Kentucky, 154 id. 204, and the many cases cited by Hr. Justice Brown.) The case of Reid, v. Colorado (187 U. S. 137), relied upon by the Attorney-General, was decided upon the ground that the act of Congress did not cover the whole subject dealt with by the-State law; but the rule was reiterated that action by Congress excludes action by the States covering the same ground.

It is-true that., by its • express terms, the act of Congress in question did not go into' effect un-til March 4-,. 1908. It is stated in the brief of the respondent, by inadvertence no doubt, that the State law was in force when- it was. passed. While ail act may'not go into force until a- given date, it ,may he effective for certain purposes before that date. It becomes a law when passed,, the operation of which,, however,--is .suspended for a given; period. .As av declaration of-"the purpose and intention, of . Congress,; it was as" effective- when passed as when, it went into effect a year later. By "it Congress declared its purpose to enter the field whiclvhad theretofore been"left to the States,-and its view that a-maximum of nine, hours of labor in twenty-four was the proper rule: for the class of employees in questiop; and it suspended.the operation of that rule for a year, obviously to allow the .interstate carriers affected to readjtist'.their force to-conform-to the.law. Action by. Congress on March 4,-1907, cannot be- regarded as non-action until March-. 4," 19.08, because.'Congress for obvious reasons saw fit to postpone .the operation of the rule, which it-declared to.be the .'proper rule, for a year;. • Our. attention is called to two decisions in . other States Apon the .precise1 point; which .seem, to us to bo s,ound. , (State v. Missouri Pac. R. Co., 212 Mo. 658; State v. Chicago, M. & St. P. R. Co., 136 Wis. 407.)

It is next urged that the Federal'act-m question is itself'- unconstitutional for the.reason that it applies to both.' interstate- and intrastate commerce; .' (See Employers’ Liability Cases, 207 U. S. 463.) But- that requires a. strained and narrow construction of the act. in ■question which might be justified to sustain, but never to, defeat) a law-. -.Doubtless.-.the employee in question had to do with the.move-rnents of- -both interstate and intrastate trains. ¡None the less,- -the ■ Federal act is exclusive, for jurisdiction once conceded, the superior t-power must be supreme.. ' . ■'*■.-

Jtidg.men't should be reversed and a new trial -granted, .costs to abide-the event.

... HlESdHBEBG;, ÍB. j,, WóODWAED, BüEE ánd ÉlOH, JJ., COnCUl’l’ed.

The' judgment réverséchand new trial granted, costs, to abide the event. . •' - ■ -.....■  