Akron, Canton & Youngstown R. Co. v. Public Utilities Commission

• Decision Date: 30 January 1967
• Docket Number: No. 220228,220228
• Citation: 224 N.E.2d 169,9 Ohio Misc. 183
• Court: Ohio Court of Common Pleas
• Parties: , 38 O.O.2d 275 The AKRON, CANTON & YOUNGSTOWN RAILROAD CO. et al. v. PUBLIC UTILITIES COMMISSION et al.

Page 183

9 Ohio Misc. 183

224 N.E.2d 169, 38 O.O.2d 275

The AKRON, CANTON & YOUNGSTOWN RAILROAD CO. et al. v. PUBLIC UTILITIES COMMISSION et al.

No. 220228.

Court of Common Pleas of Ohio, Franklin County.

Jan. 30, 1967.

Joseph S. Gill, Columbus, Squire, Sanders & Dempsey, James C. Davis, Andrew P. Martin, Charles F. Clarke and Alan P. Buchmann, Cleveland, for plaintiffs.

William B. Saxbe, Atty. Gen., Charles S. Lopeman, John F. Casey, Langdon Bell, C. Howard Johnson, Pros. Atty., George C. Smith, Columbus, for defendants.

Tyler, Richards & Grieser, William A. Richards, C. Richard Grieser, Columbus, Harold C. Heiss, Donald W. Bennett, Cleveland, for intervening defendants.

SHOEMAKER, Judge.

The plaintiffs (hereinafter called Railroads), fifteen Class I railroads, all engaged in the business of transporting freight or freight and passengers, in interstate commerce, in the state of Ohio, have brought this action for a judgment, declaring that the interpretation of the word 'firemen' in Sections 4999.07 and 4999.08, Revised Code (commonly called Full Crew Laws), does not require a 'fireman' on a Diesel electric locomotive. If the court should interpret said statutes to require a 'fireman' on a Diesel-electric locomotive, then plaintiffs claim said statutes are unconstitutional as an arbitrary and unreasonable exercise of the police power; that it deprives plaintiffs of their property without due process of law, and imposes an unreasonable burden upon interstate commerce, all in violation of the Constitution of Ohio and the United States.

The defendants are public officers, charged with the duty of enforcing said laws, and the Intervenors-Defendants (hereinafter called Brotherhoods), are labor organizations which represent operating employees of the railroads.

Section 4999.07, Revised Code, is as follows:

'No superintendent or other employee of a railroad company shall send or cause to be sent out on the main track, a through freight train with less than one engineer, one fireman, one conductor, and two brakemen, or send or cause to be sent out on the main track a light engine without cars to a point more than three miles from original starting point with less than one engineer, one fireman, and one conductor or flagman. Whoever violates this section shall be fined not less than one hundred dollars for each offense.

'The court of common pleas has final jurisdiction under this secion. The public utilities commission shall enforce this section and prosecute any violations thereof.'

Section 4999.07, Revised Code, can be traced back to Sections 3365-30 and 3365-31, Revised Statutes. These sections were enacted on May 2, 1902 as House Bill No. 325, 'An Act to better protect the lives of railway employees and the travelling public.' 95 Laws of Ohio, 337.

The pertinent provisions of Section 4999.08, Revised Code, are:

'No common carrier owning or operating an engine or locomotive used to switch cars shall operate such engine or locomotive handling cars in any railroad yard or on any railroad track within the limits of this state unless every such engine or locomotive, while so handling or switching such cars, is manned with a full crew of competent employees, which crew shall consist of at least one engineer, one fireman, one conductor, and two helpers. No such employee shall be detailed to more than one engine at the same time to be put to any other service unless his place is filled by another competent employee * * *.

'Any common carrier which violates this section shall be fined not less than one hundred nor more than five thousand dollars.'

Section 4999.08, Revised Code, can be traced back to House Bill No. 35, 103 Laws of Ohio, 191 (1913), entitled 'An Act to provide the least number of men that may be employed on switch engines, or engines engaged in switching cars, and the penalty for violation thereof.'

Incidentally, plaintiffs are not requesting the court to interpret or declare unconstitutional Section 4999.06, Revised Code, entitled 'running passenger trains with less than full crew.' (emphasis supplied.)

The primary thrust of plaintiffs' argument is that the word 'fireman' as used in the statutes involved, is a plain and unambiguous word which must be construed according to its ordinary and common usage at the time of the passage of the statutes and, so construed, means 'A man who tends or feeds fires; a stoker.' This is basically a dictionary definition at that time.

The Brotherhoods contend the evidence refutes the railroads' narrow definition and fails to define the whole job of a fireman prevalent on all railroads at that time. The Brotherhoods further contend that the cardinal principle of statutory construction is that statutes must be construed to accord with the constitutional basis of the statutes.

Before deciding the legal issues the court makes the following factual findings:

1. A fireman on a hand-fired steam engine on or about the time these statutes were enacted, performed many of the following duties:

1. He was a member of the engine crew working under the direction of the engineer. The engineer and fireman were the only members of the engine crew. The engineer's seat was always on the right side of the cab of the locomotive. The fireman's seat was always on the left side of the locomotive cab. The said engine crew worked with a train crew composed of a conductor, head brakeman and flagman. The conductor was in charge of the train.

2. He reported for duty thirty minutes before a train was ordered, and during this so-called preparatory time he would do the following:

a. Study the bulletin board.

b. Acquire necessary supplies including lubricating oil, engine oil, kerosene oil, lanterns, scoop shovels, shaker bar slack bar or fire broom, tank bucket, monkey wrench, coal maul or coal pick, flagging equipment including torpedos, fusees, and red, white and green flags.

c. Clean and fill lanterns, cab lights, and kerosene burning headlights on locomotive.

d. Proceed to the locomotive and mount the tender, swing the standpipe and fill the tender with water. Enroute water was added by a scooping process if practical and available, if not, water was added from a water plug after the locomotive was detached in the same manner as stated above.

e. Supply drinking water for the engine crew.

3. After mounting the locomotive he would tend the fire in such a manner as to maintain proper steam pressure to provide necessary power. To do this he would scoop coal from an open space on the tender to the firebox. In extreme weather many times he would find it necessary to dig the coal down where he could shovel it from his natural position on the deck. He was the only employee charged with the responsibility of tending the firebox.

4. He would keep water in the crown sheet. The crown sheet was directly above the fire in the firebox. If water became low the fireman and/or the engineer had the responsibility to fill same by pumping the boiler. Without water the crown sheet would burn and cause a boiler explosion.

5. He would keep their engines clean, and must assist, when not otherwise engaged, in making such repairs as may be required.

6. When on the road, and not otherwise properly engaged, keep a careful watch upon the track, and instantly warn the engineer of any obstruction or signal perceived.

7. He must familiarize himself with all train rules, and must understand the use of signals and use them promptly when necessary.

8. He operated the locomotive under the direction and supervision of the engineer, and in relief of the engineer.

9. He was responsible for the engine any time the engineer was absent.

10. He must protect the front end of the train when necessary.

11. He must call signals to the engineer.

12. He must observe his train and passing trains for defects including 'hot journals.'

13. Relay signals to the engineer. All signals were passed on the engineer's side when practical. However, when not practical, the fireman received and passed signals to the engineer.

14. He must read all train orders and make certain they are complied with by the engineer. He also checked the engineer's compliance with all speed and signal regulations. If necessary, he must stop the locomotive.

The percentage of time that a fireman would spend tending the fire on a handfired locomotive, would vary according to the following considerations:

(1) Speed of the locomotive,

(2) Physical characteristics of the railroad,

(3) Weather conditions, particularly humidity,

(4) Tonnage pulled by locomotive.

For example, in yard service only approximately five to ten per cent of his time would be spent tending his firebox, which would probably be banked, and he would primarily tend the fire when the locomotive was not moving so that he could call and pass signals to the engineer and observe other situations while switching cars for the purposes of making safer movements.

A fireman in local freight service, while moving on the main track, would spend approximately 45% of his time tending the firebox, but would tend his fire in such a manner that during switching operations he would be on his seat box calling and passing signals to the engineer for safer movements.

On through freight services the loads were heavier, the engines operated at greater rates of speed with ordinarily less than five switching operations, and the fireman, when not operating the locomotive in relief of the engineer, would speen approximately 50% of his time tending his firebox and the other 50% of his time on his seat box.

The fireman was the only employee in the cab (other than the engineer) capable of operating the locomotive with knowledge of the engines, braking system, and operating skills.

The head brakeman ordinarily rode in the engine cab and also had lookout responsibilities, as did all other transportation employees. On some railroads the riding position of the brakeman limited his vision. He was...