Chi. & N. W. Ry. Co. v. Mich. Pub. Utilities Comm'n

• Decision Date: 20 March 1926
• Docket Number: April Term.,No. 62,62
• Citation: 208 N.W. 62,233 Mich. 676
• Parties: CHICAGO & N. W. RY. CO. v. MICHIGAN PUBLIC UTILITIES COMMISSION.
• Court: Michigan Supreme Court

233 Mich. 676

208 N.W. 62

CHICAGO & N. W. RY. CO.

v.MICHIGAN PUBLIC UTILITIES COMMISSION.

No. 62, April Term.

Supreme Court of Michigan.

March 20, 1926.

Appeal from Circuit Court, Ingham County, in Chancery; Chas. B. Collingwood, Judge.

Suit by the Chicago & Northwestern Railway Company against the Michigan Public Utilities Commission. From a judgment for the defendant, plaintiff appeals. Affirmed by divided court.

Argued before BIRD, C. J., and SHARPE, MOORE, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ.Frank A. Bell, of Negaunee, and Nye F. Morehouse, of Chicago, Ill. (R. N. Van Doren, of Chicago, Ill., of counsel), for appellant.

Andrew B. Dougherty, Atty. Gen., and O. L. Smith, Asst. Atty. Gen. (Samuel H. Rhoads, of Lansing, of counsel), for appellee.

STEERE, J.

Plaintiff is a duly organized and incorporated railway company, which is and has been for many years engaged as a common carrier operating its lines in Michigan, Wisconsin, Illinois, and other states into which they extend carrying passengers and freight by rail, both in intra and inter state commerce.

In 1921 the Legislature of this state passed the so-called ‘Cab Curtain Law’ (Act 139, Pub. Acts 1921), entitled:

‘An act requiring railroad companies to equip locomotive engines with either cab curtains or vestibule cabs, providing a penalty for the violation of this act, and making it the duty of the Michigan Public Utilities Commission to enforce its provisions.’

By a provision in section 1 of this act, it was not to be construed as prohibiting engines not so equipped moving on their own steam, ‘either with or without a train when such movement is from a point without this state, through and to a point beyond its borders, or from a point without this state to a point within it, or from a point within this state to a point without it, if such passage is for the purpose of moving it to or from a repair shop or shops for the purpose of repairing such locomotive engine, or when it is not intended for service within this state.’

Section 1 of this act and its title were amended by Act 127, Pub. Acts 1923, omitting that proviso; the amended title and section being as follows:

‘An act requiring railroad companies to equip locomotive engines with either cab curtains, vestibule cabs, housing and other devices for the safety and health of railroad employees providing a penalty for the violation of this act, and making it the duty of the Michigan Public Utilities Commission to enforce its provisions.

‘Section 1. It shall be unlawful for any railroad company to use within the state of Michigan on its line or lines December first to April first of each year, any locomotive engine not equipped with either approved and suitable cab curtains, vestibule cab, housing and other devices for the safety and health of locomotive enginemen not in conflict with rulings of the interestate commerce commission, as the Michigan Public Utilities Commission may require to be placed upon the engine cab, water tank or coal tender: Provided, that no railroad company shall be required to place housings over the coal tender of any locomotive unless such locomotive is to be used north of straits of Mackinac. Provided further, that the said Michigan Public Utilities Commission shall be the judge as to the necessity for and the manner of equipping such locomotive engines relative to the closing of the openings between the engine cab and the water tank or coal tender, and may require such curtains, housings or other devices as it may deem necessary to meet the conditions in the several localities in the state of Michigan which will give reasonable protection to the enginemen: Provided further, that the Michigan Public Utilities Commission may from time to time order such changes and additional equipment as the commission may deem necessary for the proper protection of the enginemen.’

Plaintiff's Michigan lines extend into and through the western part of the upper peninsula of this state. Between September 9, 1921, and October 4, 1923, the Michigan Public Utilities Commission promulgated five different orders with respect to the equipment required by locomotives in the state of Michigan under its so-called ‘Cab Curtain Law.’ One of these orders, dated January 4, 1922, particularly refers to plaintiff's locomotive cab curtain equipment, with which plaintiff complied and equipped its locomotives with the type of cab curtains ordered by the commission.

On October 4, 1923, another order was made by the commission under the amended act, against which this bill was filed to restrain its enforcement on the ground that the act as amended is unconstitutional and the order void because it seeks by state legislation to invade a field already occupied by congressional legislation under the federal Constitution; and also because the order complained of is oppressive, unreasonable, and arbitrary, in that it compels plaintiff to discard equipment recently installed by order of the commission and otherwise equip its engines for the same purpose at a heavy expense with impractical appliances which would result in increased danger.

That portion of plaintiff's system most directly affected by the contested order consists of lines which extend north of and from Green Bay, Wis., through Menominee and Escanaba to Ishpeming, Mich., from Green Bay to Iron River, Mich., from Escanaba to Watersmeet in Michigan, and two other short lines within this state known as the Schlessinger and Metropolitan Branches. It also owns and operates a line between Antigo and Ashland, Wis., which crosses the Michigan state line at Ironwood. These lines all connect with plaintiff's lines extending southward through Milwaukee, Wis., to Chicago, Ill., there connecting with its lines extending westward and northerly through Illinois, Wisconsin, Iowa, Nebraska, Minnesota, North and South Dakota, and Wyoming.

During the winter season plaintiff operates in Michigan an average of 89 locomotives used daily in moving interstate commerce, passenger and freight; the bulk of its traffic being iron ore, forest products, and food supplies, with other miscellaneous freight. The traffic over its system in the ten states where its lines run being more or less seasonal, these are interchanged and transferred from time to time to other territory where its lines extend as conditions render expedient. In other northern states through which its lines extended, plaintiff had abundant experience with heavy falls of drifting snow and, long before the Michigan cab curtain law was enacted, adopted cab curtains and other equipment for protection against invading snow found from experience as it claims, to be the most efficient and practical in actual operation. The comparative efficiency of the equipment now in use by plaintiff and that ordered by defendant was made an issue of fact by the conflicting testimony of experienced railroad engineers.

Defendant's order of October 4, 1923, required the cabs to be equipped with two curtains at the gangway on each side, instead of the one now used by plaintiff, which extends over each gangway from the cab back to the front of the tank and from the top of the cab down to the deck, is held at the bottom by a flap turned in on top of the deck, and weighted down to close the opening from below, with a cape curtain hanging above at the top of the side curtains, across the back of the cab and fastened to a wooden bulkhead on the tender. It also has a drop curtain at the back of the cab hanging down to the top of the tank and closing the opening between cab and tank. The side curtains are made rigid at the rear edge by thin strips of wood, held in place by clips on the front of the tender in such manner that they can be easily sprung off by one hastily leaving the cab. It is contended that the double curtains ordered by defendant obstruct hasty exit from the cab, occasioning delay and increasing the danger in case of an emergency. Plaintiff also points out that the hood curtain at the rear of the cab as used by it does not prevent the enginemen having a clear view to the rear through the back windows, while that prescribed by defendant does and is in conflict with rule 116 of the Interstate Commerce Commission, which requires cab windows to be so located and maintained that the enginemen may have a clear rear view of the track and signals from their proper positions in the cab. We do not find that this is controverted except by testimony that the usual and best view to the rear for the enginemen while snow is flying is by leaning out of the side windows of the cab.

By order of March 13, 1911, relative to safey appliances, the Interstate Commerce Commission required side handholds, commonly called ‘grabirons,’ to be safely fastened, ‘one on each side of the tender near gangway; one (1) on each side of the locomotive at gangway; applied vertically.’ Plaintiff's grabirons on the tank are placed at the gangway on the front tank corners and do not extend outward beyond its extreme width. To avoid objections made by the federal inspectors to the prescribed curtains, which it was claimed interfered with use of the grabirons where placed, it would be necessary, in order to comply with defendant's curtain requirements, to put on new grabirons back from the front around the corner on the outside of the tank. This with the clearance space imposed by the Interstate Commerce Commission, required a heavier grabiron, 1 1/2 inch thickness, so projecting beyond the sides of the tender as to increase its width 7 1/2 inches over all, which plaintiff claimed necessitated rebuilding and widening certain of its roundhouses, that at Escanaba, with 32 stalls being so constructed, that the entrances could not be widened without rebuilding. Defendant's cab curtain order also required the construction of tank housings on top of the tenders which plaintiff claimed under its proofs would bring the top of the housing as high as...