Cincinnati, N. O. & T. P. Ry. Co. v. Public Utilities Commission, 71-756

• Decision Date: 12 July 1972
• Docket Number: No. 71-756,71-756
• Citation: 31 Ohio St.2d 81,285 N.E.2d 371
• Parties: , 60 O.O.2d 52 The CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RY. CO., Appellant, v. PUBLIC UTILITIES COMMISSION of Ohio, Appellee.
• Court: Ohio Supreme Court

Page 81

31 Ohio St.2d 81

285 N.E.2d 371, 60 O.O.2d 52

The CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RY. CO., Appellant, v. PUBLIC UTILITIES COMMISSION of Ohio, Appellee.

No. 71-756.

Supreme Court of Ohio.

July 12, 1972.

In November 1968, a complaint was filed with the Public Utilities Commission on behalf of the Co-Operative Legislative Committee of the Railroad Brotherhoods, State of Ohio, under Section 1.22 of the commission's Rules and Regulations, alleging that the Southern Railway System (Cincinnati, New Orleans and Texas Pacific Ry Co.), appellant herein, has allowed unsafe and unsanitary conditions to exist while conducting its railroad operations at Cincinnati, Ohio, in an area occupied by the Queen City Grain Company adjacent to its Gest Street Yard. The allegation was made that this area was infested with numerous rodents, maggots, and an undue amount of dust caused by unloading grain.

The area, which is the subject of the complaint, is a large grain storage facility located at the north end of the Gest Street Railroad Yard. It is owned by appellant, but leased to Queen City Grain under an eight-year renewal lease which commenced on May 20, 1969. Grain is brought in trucks to the grain company, where it is stored, and ultimately shipped out in covered railroad hopper cars which are loaded on the track alongside grain silos.

Appellant's operations on the subject property consist of providing railway service to the grain company via a track which connects the grain company facilities with the main railway network. Appellant's personnel are employed to facilitate the operation of this spur and the railroad hopper cars operating thereon.

The grain operation is conducted and controlled by the grain company, the actual loading and unloading of grain being done by grain company employees.

After a public hearing and consideration of the evidence, the attorney-examiner, in his report, stated that the testimony and the evidence presented established that an undue amount of rodents and dust had existed in 1968 ¹ in the subject area, and that there was some evidence that maggots existed in the area during the summer months. However, subsequent examinations in 1969 and 1970 indicate that corrective procedures were being taken. The examiner noted that the area in which most of the rodents appeared was on land leased by the grain company from appellant, and from other land bordering on the property owned by the railroad.

The attorney-examiner recommended that appellant be ordered to 'immediately remove the infestations of rodents and maggots in the subject area and also to prevent the accumulation of undue dust therein.'

The commission approved the report of the attorney-examiner and entered an order that within 30 days the appellant 'immediately eliminate or cause the immediate elimination of and prevent or cause the prevention of the infestation of rodents and maggots and the presence of undue dust which exists in the Queen City Company area, Cincinnati, Ohio.'

On October 15, 1971, the commission denied appellant's application for rehearing, which application states, in pertinent part:

'This application has as its premise the proposition that, although the commission agrees with the report of its attorney-examiner in finding the area which is the subject of this complaint to be objectionable, and although the commission is of the opinion that the existence of the conditions complained of are incompatible with the health, safety and welfare of respondent's employees, the commission overlooks the fact that the sanctioned conditions were and are created by an outside agency, towit: Queen City Grain Company, over which the respondent has no control.'

The cause is before this court upon appeal from the order of the Public Utilities Commission.

James G. Headley, Cincinnati, for appellant.

William J. Brown, Atty. Gen., and Thomas P. Michael, Columbus, for appellee.

PER CURIAM.

Appellant raises two propositions of law: (1) The order of the commission is against the weight of the evidence, and in light of the entire record is unlawful and unreasonable. (2) Since a landlord out of possession and control of the premises has no legal duty or obligation to make the premises safe and sanitary, the order of the commission requiring the appellant to eliminate the conditions on the grain company property has no basis at law and is unlawful and unreasonable.

Upon appeal from an order of the Public Utilities Commission, the Supreme Court cannot consider any matter which had not been specifically set forth in an application to the commission for a rehearing. See Travis v. Pub. Util. Comm. (1931), 123 Ohio St. 355, 175 N.E. 586; Cincinnati v. Pub. Util. Comm. (1949), 151 Ohio St. 353, 86 N.E.2d 10; Marion v. Pub. Util. Comm. (1954), 161 Ohio St. 276, 119 N.E.2d 67; Queen City Valves, Inc. v. Peck (1954), 161 Ohio St. 579, 120 N.E.2d 310; Conneaut Telephone Co. v. Pub. Util. Comm. (1967), 10 Ohio St.2d 269, 227 N.E.2d 409; and R.C. § 4903.10. ²

Since appellant did not raise the question of the weight of the evidence in its application for rehearing, we are barred from considering that issue at this time. However, independent of the weight of the evidence issue, we find no evidence authorizing the particular order issued by the commission.

Appellant's second proposition of law is that the order should not have issued, because the conditions complained of were not caused by appellant, but by an outside agency over which the appellant has no control.

Essentially, it appears to be the position of counsel for the commission that the commission has the authority specifically to direct appellant, as the owner of the fee, somehow to solve the problem,-even though appellant's activities were not the cause of the conditions complained of; even though the grain company, at the direction of the Board of Health of the city of Cincinnati, had prior to the hearing engaged a pest control company in an attempt to solve the rodent problem; and even though it had installed new equipment in an effort to reduce the dust problem. The order does not state the manner by which appellant, an owner out of control of the premises, is to accomplish this.

It should be observed that the order issued by the commission was not to the effect that appellant not send any of its employees into the area of potential hazard while such hazard continues, but was to the effect that appellant, itself, 'immediately eliminate or cause the elimination' thereof.

Upon an examination of the record, we conclude that the commission's order directing appellant to immediately eliminate the rodents, maggots and undue dust is unreasonable and unlawful, and therefore the order of the commission is reversed.

Order reversed.

SCHNEIDER, HERBERT, CORRIGAN, STERN and LEACH, JJ., concur.

O'NEILL, C. J., and BROWN, J., dissent.

BROWN, Judge (dissenting).

The appellant's operations on the subject property consist of providing railway service to the grain company via a track which connects the grain company facilities with the main railway network. Railroad personnel are employed in order to facilitate the operation of this spur and the railroad hopper cars operating thereon.

After a public hearing and consideration of the evidence, the attorney-examiner made these specific findings of fact, which are not in dispute before this court:

'1. The evidence produced at the hearing supports the allegation and complaint that the respondent has permitted the subject area to become infested with numerous rodents and maggots and that an undue amount of dust caused by unloading grain is prominent in the subject area.

'2. The employees of the respondent railroad are required to work in the area which is the subject of the instant complaint.

'3. Continued existence of the conditions found to exist results in unsafe and hazardous conditions of employment in the Gest Street Yard, Cincinnati, Ohio.

'4. Correction of the above-mentioned conditions must be established for the protection and safety of the employees who are required to work in the subject area.'

Section 34, Article II of the Ohio Constitution, provides:

'Laws may be passed * * * providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power.'

Pursuant to this grant of authority, the General Assembly has enacted R.C. § 4905.04, which states:

'The public utilities commission is hereby vested with the power and jurisdiction to supervise and regulate public utilities and railroads * * * and to promulgate and enforce all orders relating to the protection, welfare, and safety of...