City of Struthers v. Penn Cent. Co.

• Decision Date: 08 July 1970
• Docket Number: No. 69-715,69-715
• Parties: , 52 O.O.2d 27 CITY OF STRUTHERS, Appellant, v. PENN CENTRAL CO. et al., Appellees.
• Court: Ohio Supreme Court

Page 1

23 Ohio St.2d 1

260 N.E.2d 836, 52 O.O.2d 27

CITY OF STRUTHERS, Appellant, v. PENN CENTRAL CO. et al., Appellees.

No. 69-715.

Supreme Court of Ohio.

July 8, 1970.

Theodore T. Macejko, City Solicitor, for appellant.

Donald A. Brinkworth, Pittsburgh, Pa., for appellee Penn Central Transportation Co.

Paul W. Brown, Atty. Gen., Sheldon A. Taft, Asst. Atty. Gen., Gerald R. Wadkowski and Donald E. Ely, Columbus, for appellee Public Utilities Commission.

PER CURIAM.

Appellee Public Utilities Commission urges that the city's application for rehearing, filed with the commission, was not in conformity with the mandatory requirements of R.C. § 4903.10 that 'such application shall be in writing and shall set forth specifically the ground or grounds on which the applicant considers said order to be unreasonable or unlawful.' Because of such failure, the commission claims a want of jurisdiction by this court.

The city's application for rehearing sets forth, in essence, the following grounds for rehearing: (1) The order of the commission is arbitrary and not supported in fact; (2) the evidence shows that blockage of the street is the result of improper operation by the railroad company; (3) the order of the commission is contrary to the weight of the evidence; and (4) for other errors apparent in the record. We find that grounds 1, 3 and 4 are far too general to comply with R.C. § 4903.10. City of Cincinnati v. Pub. Util. Comm., 151 Ohio St. 353, 86 N.E.2d 10, paragraph 18 of the syllabus; City of Marion v. Pub. Util. Comm., 161 Ohio St. 276, 278, 119 N.E.2d 67; Agin v. Pub. Util. Comm., 12 Ohio St.2d 97, 232 N.E.2d 828. As to ground No. 2, the assertion that the evidence shows that blocking of the street was the result of Penn Central's improper operation does comply with the requirement of R.C. § 4903.10, and does not initially raise the question in this court.

Our review is limited to a determination of whether the commission's order was unreasonable or unlawful, as reflected by the evidence in the record. R.C. § 4903.13. ² While we commiserate with those citizens of the city of Struthers in the distress caused by the blocking of the crossing, we find no evidence in the record that the commission's order does not meet the legal standard. On the only question properly raised in the application for rehearing, and which is now before this court, we find no evidence that the blockage of the crossing resulted from the improper operation of equipment and trains by Penn Central.

Latent in appellant's contention is the proposition that R.C. §§ 4907.08 ³ and 4907.52 ⁴ impose an affirmative duty upon the commission, both to investigate and thereafter to order measures into effect to relieve the congestion at a railroad crossing near the crossing complained about, especially when the operation of other railroads contributes to the congestion. The argument is that the commission can alleviate the congestion by rearranging rights of way and priorities between the intersecting railway lines. The only evidence to support that argument is the testimony of a witness, Ray, who commented, concerning the possibility of the commission ordering operating priorities between railroads, 'antyhing is possible.'

Since this ground was not set forth in the application for rehearing filed with the commission, it cannot be raised initially in this court. R.C. § 4903.10.

Additionally, appellant urges this court to order the commission to exert power that it simply does not possess. Under R.C. § 4907.08, upon complaint 'that a railroad * * * has violated or is violating any law of this state, or if it has reason to believe that differences have arisen between citizens of the state and any railroad operating as a common carrier * * *, it shall examine into the matter' and 'report violations thereof to the attorney general.' See footnote 3. Appellant's complaint has been heard and the matter examined. The record shows that Penn Central has been criminally prosecuted under R.C. § 5589.21....