Akron & B.B.R. Co. v. Public Utilities Commission

• Decision Date: 23 July 1947
• Docket Number: 30818.
• Citation: 74 N.E.2d 256,148 Ohio St. 282
• Court: Ohio Supreme Court
• Parties: AKRON & B. BELT R. CO. v. PUBLIC UTILITIES COMMISSION.

74 N.E.2d 256

148 Ohio St. 282

AKRON & B. BELT R. CO. v. PUBLIC UTILITIES COMMISSION.

No. 30818.

Supreme Court of Ohio

July 23, 1947

Syllabus by the Court.

1. The Public Utilities Commission has plenary power under and by virtue of Section 614-3, General Code, to promulgate and enforce orders relating to the protection, welfare and safety of railroad employees. (New York Central R. Co. v. Public Utilities Commission, 130 Ohio St. 548, 200 N.E. 759 approved and followed.)

2. By virtue of the provisions of Section 614-3, General Code the Public Utilities Commission has the power and jurisdiction, upon hearing, to promulgate and enforce an order for the operation of a caboose as a component part of a freight train if such equipment and operation are essential to the protection, welfare and safety of railroad employees and the traveling public. Such action and order is not violative of any provisions of the state or federal constitution.

Appeal from Public Utilities Commission.

This is an appeal from an order issued by the Public Utilities Commission of Ohio, appellee herein, following a citation and hearing, which order requires the Akron & Barberton Belt Railroad Company, appellant herein, to 'supply and furnish a caboose upon each freight train operated by it between Barberton and East Akron.'

The appellant operates a railroad extending from Barberton eastward to Akron and East Akron, a distance of approximately 13 miles, and northward from Barberton to Fairlawn, a distance of approximately seven miles. Its tracks connect with those of the Pennsylvania Railroad Company, the Baltimore & Ohio Railroad Company and the Erie Railroad Company at Barberton and with those of the Akron, Cleveland & Youngstown Railroad Company at East Akron and Fairlawn. Its business consists of delivering cars received by it from other railroads consigned to the numerous industries and business establishments located along its tracks, and of delivering to such railroads cars shipped by such industries.

In addition to its tracks, the only equipment owned by the appellant consists of five steam locomotives with tenders and one Diesel locomotive. A cabin (referred to as a 'dog house') for the use of the trainmen has been constructed on the deck of each of four of the tenders. One steam locomotive and the Diesel locomotive are not so equipped. The appellant owns no cars and no cabooses.

At the time of the hearing upon the citation to show cause why the order should not be issued, the appellant regularly employed six crews, each consisting of an engineman, a fireman, a conductor and two brakemen. The Diesel locomotive and crew are used entirely for switching in the Barberton territory and between Barberton and Fairlawn. Two of the steam locomotives, including the one without a cabin on the tender, are also used exclusively in the Barberton Territory.

The three remaining locomotives with their crews operate between Barberton, and South Akron and East Akron, in each instance beginning their runs at Barberton, moving cars between such points, switching cars in and out of the various industries enroute and returning to Barberton for relief. The tenders of the locomotives on these three trains are equipped with cabins and the crews ride either in these cabins or on the tops or sides of the cars being hauled. The appellant's tracks cross numerous streets and highways and the trainmen flag these crossings to protect traffic.

After the hearing before the Public Utilities Commission that body made the following finding and order:

'* * * We have given careful consideration to the testimony produced at each of the hearings and to the respective claims and contentions of the parties. In our opinion the facilities presently provided by the railroad for the trainmen who operate trains between Barberton and East Akron are inadequate and that their safety and welfare and in a lesser degree the safety and welfare of the travelling public require that the railroad provide cabooses upon those trains operating between Barberton and East Akron. The presence of cabooses on these trains will provide the trainmen with facilities while they are away from their home terminal in which they can carry necessary and proper clothing, first aid equipment and supplies, food and other necessities. They will provide shelter for trainmen and afford a safe place from which to discharge their necessary duties in accordance with the requirements of the railroad. The facilities provided by a caboose and especially the presence of an emergency air valve will enable trainmen to stop the train in the event of emergencies. It will likewise provide a place upon the train where trainmen may perform their clerical duties.

The use of cabooses will eliminate the unsafe conditions arising from the use of the so-called dog house. Under the circumstances as disclosed by the entire record herein we do not feel that a caboose is presently necessary on the belt junction line so long as the present motive power is used.

'We recognize that this requirement will place an additional financial burden upon the railroad; however, the testimony with respect to the extent of such burden is somewhat speculative and in our opinion the railroad can reduce the actual cost thereof much below the estimate testified to herein. It is, therefore,

'Ordered, that the respondent, The Akron & Barberton Belt Railroad Company supply and furnish a caboose upon each freight train operated by it between Barberton and East Akron.'

A reversal of the order of the commission is sought by the appellant upon the ground that the same is unreasonable and unlawful.

Burr, Porter, Stanley & Treffinger, of Columbus, for appellant.

Hugh S. Jenkins, Atty. Gen., and Harry G. Fitzgerald, Jr., of Columbus, for appellee.

MATTHIAS Judge.

The practical effect of the order complained of is that each freight train operated by the appellant between Barberton and East Akron is required to have a caboose as a component part thereof and operated in connection therewith.

The major contention made by the appellant is that such order is unlawful for the reason that the Public Utilities Commission is without authority to make such order; that its action constitutes an attempt to exercise legislative power, and that the making of such order exceeds the supervisory and regulatory powers authorized by the Constitution to be conferred upon the Public Utilities Commission by the General Assembly.

The order was made by the commission pursuant to Section 614-3, General Code, which provides:

'The public utilities commission of Ohio is hereby vested with the power and jurisdiction to supervise and regulate 'public utilities' and 'railroads' as herein defined and provided and to require all public utilities to furnish their products and render all services exacted by the commission, or by law, and also to promulgate and enforce all orders relating to the protection, welfare and safety of railroad employees and the traveling public.'

The contention is made by appellant that in the absence of a statute specifically requiring the operation of a caboose as a part of a freight train on any railroad, the commission is without authority to issue an order making such requirement, even though the commission finds the use and operation of a caboose as a part of a freight train to be a necessary factor in and for the 'protection, welfare and safety of railroad employees and the traveling public.'

Reliance is based upon the decision of this court in the case of State ex rel. Public Utilities Commission v. New York Central R. Co., 115 Ohio St. 477, 154 N.E. 790, to support that contention. That case was decided December 21 1926. It is quite significant that thereafter, on April 6, 1929, 113 Ohio Laws, 256, Section 614-3, General Code, was duly amended by adding to the power...