Baltimore & OR Co. v. United States

• Decision Date: 24 November 1933
• Docket Number: No. 4681.,4681.
• Citation: 5 F. Supp. 929
• Parties: BALTIMORE & O. R. CO. et al. v. UNITED STATES et al.
• Court: U.S. District Court — Northern District of Ohio

5 F. Supp. 929

BALTIMORE & O. R. CO. et al. v. UNITED STATES et al.

No. 4681.

District Court, N. D. Ohio, E. D.

November 24, 1933.

Sidney S. Alderman, of Washington, D. C., H. Z. Maxwell, of Philadelphia, Pa., Alfred P. Thom, Jr., of Washington, D. C., and Nye F. Morehouse, of Chicago, Ill., and William N. King, of Cleveland, Ohio (J. Aronson, of New York City, M. L. Bell, of Chicago, Ill., Henry Wolf Bikle; of Philadelphia, Pa., N. S. Brown, of St. Louis, Mo., N. S. Buckingham, of New Haven, Conn., H. W. Clark, of New York City, W. R. C. Cocke, of Norfolk, Va., John J. Cornwell, of Baltimore, Md., Ben C. Dey, of New York City, F. G. Dorety, of St. Paul, Minn., R. V. Fletcher, of Washington, D. C., W. L. Kinter, of Philadelphia, Pa., W. H. Lyford, of Chicago, Ill., D. F. Lyons of St. Paul, Minn., Clarence A. Miller, of Washington, D. C., H. T. Newcomb, of New York City, W. B. Rodman, of Norfolk, Va., Bruce Scott, of Chicago, Ill., H. A. Taylor, of Cleveland, Ohio, and E. J. White, of St. Louis, Mo., of counsel), for petitioners.

Thomas Stevenson, of Cleveland, Ohio (Horn, Weisell, McLaughlin & Lybarger and Harold N. McLaughlin, all of Cleveland, Ohio, of counsel), for interveners.

Elmer B. Collins, Sp. Asst. to Atty. Gen., for the United States.

D. W. Knowlton, Chief Counsel, Interstate Commerce Commission, of Washington, D. C., for the Interstate Commerce Com'n.

Before HICKENLOOPER, Circuit Judge, and WEST and KILLITS, District Judges.

PER CURIAM.

This is a representative action brought by a number of the leading railroads of the United States, and in the interest of substantially all of the steam operated carriers of the country, to enjoin the enforcement by the Interstate Commerce Commission of amendments supplementary to its rule 157, ordered by the commission in January of this year, after a very extensive hearing, and on the joint complaint of the chief engineer of the Brotherhood of Locomotive Engineers, and the president of the Brotherhood of Locomotive Firemen and Enginemen. 190 Interstate Commerce Commission Reports, 351.

The complaint was instituted under the provisions of the Boiler Inspection Act to raise the question of comparative safety between manually and power operated reverse gears on locomotives, and to seek an order compelling the equipment of steam locomotives with power reverse gear, and the substitution on locomotives in use of such gear for the manually operated apparatus thereon employed.

A very extensive fact record, embracing the testimony of hundreds of witnesses familiar with facts underlying the question in contest, was produced. The order sought to be enjoined entails an ultimate expense upon the carriers of between seven and eight million dollars in the changing of gears on more than 20,000 locomotives now in use.

Further recitation of the facts is unnecessary here. Special recital of those particularly involved will be had. Nor does it seem necessary to attempt an elaborate analysis of the very large record and a full discussion of the many reasons advanced by the parties respecting the action of the commission leading to the order complained of.

We consider that the report, 190 I. C. C. 351, adequately meets whatever requirement may exist for a statement of conclusions of fact, in view of section 14 (1), 49 USCA; Lehigh Valley R. Co. v. Clark (C. C. A.) 207 F. 717, 721.

At the threshold of inquiry stands the earnestly contested question whether the Interstate Commerce Commission, hereinafter referred to as the commission, was empowered to entertain, as in this instance, a complaint of employees' organizations seeking an amendment of such rules as are required to be adopted under the Boiler Inspection Act. It is conceded that if jurisdiction in the commission existed to act upon such a complaint, it is to be found only in that act. 45 USCA § 22 et seq.

Were the question one of first impression, and we had nothing before us but the language of the act itself, this court would have difficulty in finding legislative support for the jurisdiction exercised by the commission in this instance, except through a very broad application of the rule of liberal construction. Yet, to refuse such construction to the act, would lead to a conclusion tending to a large degree of frustration of the office of this legislation to effect the purpose of the act as reflected in its title, to which we, of course, may refer in doubtful cases, which reads:

"An Act To promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto." 36 Stat. 913.

However, from the beginning the commission has exercised the authority now questioned, and in twelve orders prior to July, 1925, amended eighteen of its rules to require improvements in, or installations of, special safety devices on steam locomotives. Then followed the decision of the United States Supreme Court in Napier v. Atlantic Coast Line et al., 272 U. S. 605, 47 S. Ct. 207, 71 L. Ed. 432, in which the question was whether the Boiler Inspection Act had so occupied the field of regulating locomotive equipment so as to preclude state legislation. It is urged on behalf of the plaintiffs here that the opinion in the Napier Case, so far as it touches upon the question of jurisdiction in the commission to entertain such a complaint, is obiter. There is color of justification for this claim, but we are not content to so lightly regard its office. The question before the Supreme Court involved a comprehensive consideration of the force of the Boiler Inspection Act, and the authority of the commission thereunder; so much so that the language of the opinion cannot be regarded by us as merely collateral to the issue there, but rather impellingly applicable as an interpretation of the whole statute as operatable legislation. Advised by it, we find necessity to uphold the jurisdiction of the commission in this specific instance.

In the pleadings, and in the presentation of this case, the fact situation before the commission is comprehensively presented and argued. It is unnecessary to cite extensive authority for the proposition that we have a very narrow opportunity to consider the evidence. The privilege and duty of the commission to function speedily and effectively as an administrative body must be sustained.

The general rule controlling us is that we should not weigh evidence, nor consider the wisdom of the commission's action if its determination finds substantial support in the fact record, Chicago, R. I. & P. Ry. v. U. S., 274 U. S. 29, 33, 47 S. Ct. 486, 71 L. Ed. 911; we cannot inquire into the soundness of the reasoning by which its conclusions are reached, nor question the wisdom of regulations prescribed by it. Western Paper Makers' Chem. Co. v. U. S., 271 U. S. 268, 271, 46 S. Ct. 500, 70 L. Ed. 941; Interstate Com. Com. v. Ill. Cent. R. Co., 215 U. S. 452, 471, 30 S. Ct. 155, 54 L. Ed. 280; U. S. v. New River Co., 265 U. S. 533, 542, 44 S. Ct. 610, 68 L. Ed. 1165. But we may regard the fact situation to determine, if it is claimed, whether the commission has acted arbitrarily or inconsiderately in some particular. B. & O. R. R. Co. v. U. S., 264 U. S. 258, 44 S. Ct. 317, 68 L. Ed. 667; Interstate Commerce Commission v. L. & N. R. Co., 227 U. S. 88, 90, 91, 33 S. Ct. 185, 187, 57 L. Ed. 431; U. S. v. Abilene & So. R. Co., 265 U. S. 274, 44 S. Ct. 565, 68 L. Ed. 1016; A., T. & S. F. Ry. Co. v. U. S., 284 U. S. 248, 52 S. Ct. 146, 76 L. Ed. 273.

The challenge to scrutinize the fact record within the limitations just alluded to is earnestly made by the petitioners in this case. It cannot be disputed that the commission hearing an issue of the character raised by the complainant, and leading to the order under consideration, sat under the limitations of a judicial body, and became in the process of fact finding virtually a jury bound to use the applicable criteria controlling jurors in the weighing of the probative force of matters of evidence. That the commission is an administrative tribunal "appointed by law and informed by experience" does not differentiate it in this respect from a jury at law. Therefore, here are raised the queries whether the order is supported by substantial evidence, and whether in arriving at its conclusions of fact the commission acted arbitrarily respecting the comparative potentialities of important facts established, and/or by ignoring "the `indisputable character of the evidence.'" I. C. C. v. Louisville & Nashville R. Co., supra. To refuse to consider pertinent evidence introduced is arbitrary action. Chicago Junction Case, 264 U. S. 258, 267, 44 S. Ct. 317, 68 L. Ed. 667. The distinction between refusal to heed, and palpable neglect to give, substantial evidence the weight it manifestly carries, in casting up the affirmative and negative matters in the testimony, is immaterial—either is arbitrary.

Opportunity is at hand, presented by the commission's report, to examine into petitioners' challenge that the commission was arbitrary in the consideration of the case-made, and that it arrived at its conclusions through disregarding or ignoring substantial testimony. Petitioners, in their exceptions to the draft report of the examiner, in their motion for findings of fact and in their petition for reargument, were thorough in directing the attention of the commission to the circumstances which they considered to support these charges. We comment on some thereof, solely because the report affords sufficient illumination, and, in so doing, understand that we have no concern with the reasoning of the commission upon the facts accepted by it, and no right to attempt setting up a judgment as to the issue.

It is urged that the commission refused to apply its own standard respecting the determination of the weight of conflicting testimony that the substance thereof,...