Chicago v. Illinois Commerce Comm'n ex rel. Bhd. of R.R. Trainmen

• Decision Date: 13 October 1936
• Docket Number: No. 23573.,23573.
• Citation: 364 Ill. 213,4 N.E.2d 96
• Parties: CHICAGO, B. & Q. R. CO. v. ILLINOIS COMMERCE COMMISSION ex rel. BROTHERHOOD OF RAILROAD TRAINMEN.
• Court: Illinois Supreme Court

364 Ill. 213

4 N.E.2d 96

CHICAGO, B. & Q. R. CO.

v.ILLINOIS COMMERCE COMMISSION ex rel. BROTHERHOOD OF RAILROAD TRAINMEN.

No. 23573.

Supreme Court of Illinois.

June 17, 1936.

As Modified on Denial of Rehearing Oct. 13, 1936.

Appeal from Circuit Court, Cook County; Walter J. La Buy, judge.

Proceeding before the Illinois Commerce Commission by the Brotherhood of Railroad Trainmen against the Chicago, Burlington & Quincy Railroad Company for an order directing the Company to construct and maintain a stairway for the use of yard employees at its Western avenue train yard in the city of Chicago from the street level of Eighteenth place to the yardmaster's office, wherein the Commission entered an order granting the relief, and the Railroad appealed to the Circuit Court. From an order of the Circuit Court affirming the order of the Commission, the Railroad appeals.

Affirmed.J. C. James, Sidney F. Blanc, J. A. Gillen, and Russell B. James, all of Chicago (Bruce Scott, of Chicago, of counsel), for appellant.

Otto Kerner, Atty. Gen., and Irvin Rooks, of Chicago (Lee A. Freeman, of Chicago, of counsel), for appellee.

JONES, Justice.

This is an appeal from an order of the circuit court of Cook county confirming an order of the Illinois Commerce Commission requiring the Chicago, Burlington & Quincy Railroad Company to construct and maintain a stairway for the use of yard employees at its Western avenue trainyard, in the city of Chicago, from the street level of Eighteenth place to the yardmaster's office.

Western avenue runs north and south and crosses under appellant's tracks by means of a subway. The railroad right of way is on a fill about 25 feet high and crosses over Western avenue in a northeasterly and southwesterly direction. That part of Eighteenth street lying east of Western avenue abuts upon and parallels the right of way for some distance, and then runs due east. Eight tracks occupy the right of way across Western avenue, numbered from north to south. Track 1 is used by westbound passenger trains. Track 2 is used by passenger trains in both directions, except that during rush hours in the morning it is used only by eastbound trains. Track 3 is used for east bound passenger service. Track 4 is used by freight trains. Operations may be varied as exigencies require. The other four tracks are switch tracks connected with the trainyards east of Western avenue. Some of the switching into the yards is accomplished by gravity. Westbound passenger trains stop at a stationand platform north of track 1, on the east side of Western avenue. Eastbound passenger trains stop at a platform between tracks 2 and 3. There is a picket fence between tracks 1 and 2 to prevent crossing. Stairways from Western avenue lead up to the station platforms. The yardmaster's office is on the fill south of track 8, about 120 feet southeast of the station platforms. The south side of the south retaining wall of the fill coincides with the north line of Eighteenth street. The estimated cost of the stairway is about $1,800. If erected, it would be in the street. The city of Chicago was not made a party to, or notified of, the proceeding. An alleged discrepancy in describing Eighteenth street as Eighteenth place will be later noticed.

Besides suburban and through passenger service, there are foreign freight trains into and out of the yards and heavy switching operations during the entire twenty-four hours of the day. No complete schedule of train operations is maintained, and there is nothing to give notice of approaching trains or cars. Two switch engines work there regularly. One of them works practically all the time. About 88 yardmen are employed. They are required to report to the yardmaster's office on coming to and leaving work. The only way to reach or leave the office in so doing is by crossing the tracks between it and the platforms. If the proposed stairway is installed, the employees will be relieved of that necessity. At least 75 per cent. of them use the suburban passenger service. One of them was killed on April 6, 1934, while crossing the tracks to report for duty. Appellant's records show no other accident there since 1906.

Appellant's division superintendent testified that there are a large number of children in the neighborhood, some of whom come upon the right of way to pick up fuel; that they can come up by the Western avenue stairs; that the management apprehends the proposed stairway may be used by them and by outsiders to make short cuts to the platforms, endangering their lives; that it would be impracticable to maintain a locked gate there with access to employees only; that appellant has experienced trouble from trespassers using stairways at other points; that the use of the proposed stairway by employees in seeking train service would necessitate their using the other stairs and traveling about 415 feet instead of 120 feet, and he doubted they would do so.

This cause reached the circuit court by appeal after appellant's application for a rehearing was denied by the commission. Appellant urges that the order and the provisions of the statute under which it was entered contravene the Federal and State Constitutions. By section 67 of the Public Utilities Act, Laws 1921, p. 702 (Smith-Hurd Ann.St. c. 111 2/3, § 71; Cahill's Stat.1933, c. 111a, par. 86), as then in effect, it was provided that any party to the proceeding may apply for a rehearing by the commission in respect to any matters determined in such proceeding and specified in the application for rehearing. No appeal could be allowed until such an application was filed and acted upon by the commission. The record does not show that this constitutional question was presented to the commission at any time or to the circuit court. It therefore cannot be urged here. People v. City of Waukegan, 344 Ill. 60, 175 N.E. 780;Phelps v. Board of Appeals, 325 Ill. 625, 156 N.E. 826. What is here said applies to the claims that the complaint and order are ambiguous and uncertain and that the order conflicts with the provisions of the Railway Labor Act of Congress (45 U.S.C.A. § 151 et seq.).

Section 50 of the Public Utilities Act (Smith-Hurd Ann.St. c. 111 2/3, § 50; Ill.Rev.Stat.1935, c. 111a, par. 65) provides in part: ‘Whenever the Commission * * * shall find that additions, extensions, repairs or improvements to, or changes in, the existing plant, equipment, apparatus, facilities or other physical property of any public utility * * * ought reasonably to be made or that a new structure or structures should be erected, to promote the security or convenience of its employees or the public, or in any other way to secure adequate service or facilities, the Commission shall make and serve an order directing that such additions, extensions, repairs, improvements or changes be made, or such structure or structures be erected in the manner and within the time specified in said order.’

The first paragraph of section 57 of the same act (Smith-Hurd Ann.St. c. 111 2/3, § 61) provides: ‘The Commission shall have power * * * to require every public utility to maintain and operate its plant, equipment or other property in such manner as to promote and safeguard the health and safety of its employees, passengers, customers, and the public, and to this end to prescribe, among other things, the installation, use, maintenance and operation of appropriate safety or other devices or appliances including interlocking and other protective devices at grade crossings * * * and * * * systems of signaling, to establish * * * standards of equipment, and to require the performance of any other act which the health or safety of its employees, passengers, customers or the public may demand.’ Section 32, as amended in 1933 (Smith-Hurd Ann.St. c. 111 2/3, § 32), imposes such duties upon public utilities.

Under the claim that the commission was without jurisdiction to enter the order, it is contended there is nothing which authorizes such an order in either of the sections mentioned. It is urged that the objective of the Legislature was to enable the commission to enforce the duty of utilities to furnish adequate service to the public; that the powers granted are limited to maters in which the public has an interest; that there is neither allegation nor proof that the public has any interest in this proceeding, but the benefits of the proposed stairway would be confined merely to a group of employees. Appellant relies upon expressions in three decisions of this court and in two cases decided by the United States Supreme Court. In State Public Utilities Comm. v. Noble, 275 Ill. 121, 113 N.E. 910, 912, we said: ‘The purpose of this act was to bring under public control property which was being applied to public use, the owner of such property being required to submit to its control by the public to the extent of its interest as long as the public use is maintained.’ In that case the question was whether or not a telephone exchange to be constructed outside a village by certain individuals, not only for service among themselves, but to connect with commercial lines, was a public utility. We held that it was. Under an analogous issue in State Public Utilities Comm. v. Bethany Mutual Telephone Ass'n, 270 Ill. 183, 110 N.E. 334, 335, Ann.Cas.1917B, 495, we said: ‘The purpose of the act is to bring under control by the public, for the common good, property applied to a public use in which the public has an interest.’ Obviously those cases have no relation to the question here.

In Kennedy v. State Public Utilities Comm., 286 Ill. 490, 122 N.E. 111, 112, the only issue was whether or not, in the absence of any statutory requirement, an appellant could be required to advance to the commission the costs of preparing the record on appeal. In holding that the statute imposed the duty upon the commission of filing the transcript within a specified time, without any provision as to costs, we said: ...