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

• Decision Date: 31 May 1956
• Docket Number: No. 34660,34660
• Citation: 165 Ohio St. 316,135 N.E.2d 400
• Parties: , 59 O.O. 410 The AKRON & BARBERTON BELT RD. CO. et al., Appellants, v. PUBLIC UTILITIES COMMISSION of Ohio, Appellee.
• Court: Ohio Supreme Court

Page 316

165 Ohio St. 316

135 N.E.2d 400, 59 O.O. 410

The AKRON & BARBERTON BELT RD. CO. et al., Appellants, v. PUBLIC UTILITIES COMMISSION of Ohio, Appellee.

No. 34660.

Supreme Court of Ohio.

May 31, 1956.

Syllabus by the Court.

1. The Public Utilities Commission is solely a creature of the General Assembly and may exercise no jurisdiction beyond that conferred by statute.

2. The Administrative Procedure Act, by Section 119.01, Revised Code, specifically exempts the Public Utilities Commission from the provisions of the act, and the commission has no authority to promulgate a rule under such act.

3. Under Section 4901.13, Revised Code, the Public Utilities Commission has authority to adopt rules to govern its proceedings and to regulate the mode and manner of investigations, but it has no power to make any general rules other than for such purpose.

4. By Section 4905.04, Revised Code, the Public Utilites Commission is given the authority to determine as to track elearances for railroad yards, but, under that section, it has no power to promulgate an order without a full hearing and the production of evidence to support the findings upon which the order is based.

5. Section 4909.30, Revised Code, authorizes the Public Utilities Commission, upon application of any person or any railroad and after notice to the parties in interest and an opportunity for them to be heard, to rescind, alter or amend any order made by the commission with respect to a railroad, but such statute does not authorize the commission to rescind, alter or amend an order made by it with respect to a railroad, without the production of evidence justifying such rescission, alteration or amendment.

Appellants, hereinafter referred to as railroads, are railroads operating in Ohio, and appellee is the Public Utilities Commission, hereinafter referred to as the commission.

On September 18, 1950, the commission promulgated an order finding 'that the protection, welfare and safety of railroad employees within the state of Ohio reasonably require that the commission should promulgate the following order respecting clearances between yard tracks as hereinafter set forth.'

The order then states, inter alia, that in the construction of new yards, the reconstruction of existing yards, or the construction of additional tracks in existing yards, the curvature of the tracks shall not exceed a certain degree, that the angle between the ladder tracks and the body tracks shall not be more or less than as specified in the order, that the ladder tracks shall be spaced as specified in the order, and that the body tracks shall be spaced not less than 13 feet center to center.

After a hearing, that order was entered and is the result of an agreement between the railroads and transportation brotherhoods.

On January 26, 1955, the commission filed a proposal to promulgate Administrative Order No. 151, in which it states that it is of the opinion that the protection, welfare and safety of railroad employees within the state of Ohio reasonably require the promulgation by the commission of certain minimum standards respecting clearances between tracks of railroad companies operating in and through Ohio, and that before determining such minimum standards the commission should afford an opportunity to all interested parties to present to it in written form their views concerning minimum standards.

The commission further set out in its proposal standards of a minimum of 14 feet between the centers of adjacent and parallel railroad tracks and made and proposed other changes from the 1950 order.

The railroads filed a response to the commission's proposal on February 23, 1955, in which they said that in the commission's proposal there is nothing to show the basis or reasons for the commission's promulgating of minimum standards differing from those prescribed, that no mention is made of any changed conditions or circumstances which would justify a new or amended order, and that, since the power of the commission to rescind or amend an order is governed by Section 4909.30, Revised Code, the commission is authorized to rescind, alter or amend any order made by it with respect to a railroad only upon application of a person or a railroad and after notice to the parties in interest and an opportunity to be heard.

On May 27, 1955, the commission filed an order in which it states that it was scheduling hearings in respect to Administrative Order No. 151, dated January 26, 1955, for the purpose of affording an opportunity to all parties in interest to be heard in the matter of establishing new minimum track clearances within the state of Ohio, and modifying, by the issuance of an order, the outstanding order, and scheduled the hearings for June 20, 1955.

On June 13, 1955, the railroads moved the commission to dismiss the proceeding for the reason that it was not commenced in conformity with the provisions of Section 4909.30, Revised Code.

That motion was overruled.

At the hearing on June 20, 1955, no testimony which was admitted in evidence was put on by the commission, although one of the transportation brotherhoods brought forward two exhibits to the effect that the proposed order is similar to that in some of the other states of the Union, and that there were a certain number of pieces of freight equipment owned by railroads which were 10 feet six inches, or greater, in width.

The railroads submitted evidence that there were fewer wide cars in 1955 than there were in 1950.

After again overruling the railroads' motion to dismiss the proceeding, the commission filed Administrative Order No. 151 on October 20, 1955, which provides for a 14-foot clearance between the centers of tracks instead of the 13-foot clearance in the outstanding order.

An application by the railroads for a rehearing was dismissed.

The cause is before this court as a matter of right.

Oscar Lindstrand, Chicago, Ill., J. Raymond Clark, Philadelphia, Pa., D. A. Brinkworth, Pittsburgh, Pa., G. Ohlinger, Toledo, Andrew P. Martin, J. P. Canny, J. T. Clark, A. Compton Russell, Cleveland, Harris K. Weston, Cincinnati, Robert G. Boes, Cleveland, Louis D. Bannon, Portsmouth, Lucian H. Cocke, Jr., Roanoke, Va., Carl M. Jacobs, A. J. Allen, Jr., Cincinnati, Harrison W. Smith, Columbus, and Ralph M. Buzek, Cincinnati, for appellants.

C. William O'Neill, Atty. Gen., Paul Tague, Jr., and Ralph N. Mahaffey, Columbus, for appellee.

STEWART, Judge.

The single question now before us is whether Administrative Order No. 151, promulgated by the commission, was issued without jurisdiction, and, if not, whether it is arbitrary, unlawful or unreasonable.

In view of the conclusion at which we have arrived, it is unnecessary to consider any question except the jurisdiction of the commission to issue the order.

This court has reiterated, many times, the obvious truth that the commission is solely a creature of the General Assembly and may exercise no jurisdiction beyond that conferred by statute. City of Toledo v. Public Utilities Commission, 135 Ohio St. 57, 19 N.E.2d 162.

It follows that the commission had authority to promulgate order No. 151 only if the statutes of Ohio conferred such authority.

The commission had no authority to promulgate a rule under the Administrative Procedure Act, for the reason that such act specifically exempts the commission from its provisions. Section 119.01, Revised Code.

The sole...