L. S. Elec. Ry. Co. v. P.U.C.

• Decision Date: 23 March 1932
• Docket Number: 23256
• Citation: 125 Ohio St. 48,180 N.E. 552
• Parties: The Lake Shore Electric Ry. Co. v. Public Utilities Commission Of Ohio.
• Court: Ohio Supreme Court

180 N.E. 552

125 Ohio St. 48

The Lake Shore Electric Ry. Co. v. Public Utilities Commission Of Ohio.

No. 23256

Supreme Court of Ohio

March 23, 1932

State highways - Elimination of railroad grade crossings - Appeal to Public Utilities Commission constitutes proceeding de novo - Section 1229-16, General Code - Elimination improvement entailing large financial expenditures, inexpedient, when.

1. Under Section 1229-16, General Code, an appeal to the Public Utilities Commission from an order of the director of highways directing an elimination of grade crossing constitutes a proceeding de novo, and is to be heard upon the evidence adduced before the Public Utilities Commission.

2. Under Section 1229-16, General Code, when such proposed improvement entails large financial expenditures, and when all parties to such appeal before the Public Utilities Commission state that it is impossible at the time in question for such improvement to be built, due to the financial condition of the appellant railroad, the improvement is not expedient.

This case arises as an error proceeding to in order of the Public Utilities Commission of Ohio, which order sustained an order of the director of highways requiring the separation of grade of state highway No. 3 from the track of the New York Chicago & St. Louis Railroad Company (the Nickel Plate Railroad) and the track of the Lake Shore Electric Railway Company, at a point where the highway and the railroad rights of way intersect about two miles east of Vermilion, Ohio. It is proposed that a highway bridge be built across the tracks. The director of highways entered an order finding that the elimination of the grade crossing in question was reasonably necessary and expedient. Upon appeal being perfected by the Lake Shore Electric Railway Company, the Public Utilities' Commission sustained the order of the director of highways.

Further facts are stated in the opinion.

Messrs Tolles, Hogsett & Ginn and Mr. W.A. Dougherty, for plaintiff in error.

Mr. Gilbert Bettman, attorney general, Mr. T. J. Herbert, Mr. J. A. Godown, Mr. R. S. Powers and Mr. C. G. Siegman, for defendant in error.

ALLEN J.

The hearing of this question was held under Section 1229-16, General Code, which is as follows: "From the finding and order of the director that such improvement, mentioned in section 53, of this act [for the abolishment of existing grade crossings], is reasonably necessary and expedient, any railroad company or any interurban railroad company may, upon the question of such necessity and expediency, take an appeal to the public utilities commission of Ohio. A party desiring to take such an appeal shall file with said director written notice of its intention so to do within thirty days after service upon it of a copy of said finding and order, as provided in section 54 of this act. Said director shall thereupon certify to such commission all original papers on file with him, together with a copy of all orders made by him in said proceeding. Said appeal shall be docketed by said commission and, after not less than ten days' written notice to all interested parties setting forth the time and place when and where said appeal will be heard, said commission shall hear the same upon the evidence adduced before it and shall thereupon determine and decide whether the making of said proposed improvement is necessary and expedient. An appeal from the order of the director fixing the contribution of a street railway or an interurban railroad company to said public utilities commission may be taken and shall be heard and decided in the same manner. And any party to such proceedings on appeal, and deeming himself aggrieved by the decision of the commission thereon, may prosecute error or appeal to the supreme court as in other cases."

Since the statute provides that the commission shall hear the appeal on the evidence adduced before it, the hearing was a proceeding de novo. Hence we proceed to consider whether upon the evidence contained in the record made before the Public Utilities Commission the making of such proposed improvement is necessary and expedient.

The record shows that the crossing in question is dangerous, but that no fatality has occurred at the crossing since the installation of flasher lights...