Opinion
No. 31249
Decided June 2, 1948.
Public Utilities Commission — Juricdiction — Private railroads not doing business as common carriers, exclude — Supervision and regulation apply only to common carriers — Full crew law inapplidable to private railroads, when — Sections 501, 502, 503, 614-3 and 12557-1, General Code — Steel manufacturing corporation locomotives operated in switching within plant — Common-carrier railroad employees assigned under contract to operate locomotives — Steel corporation not common carrier and railroaders not in comman carrier's employ.
1. The provisions of Sections 501, 502 and 503, General Code, establishing the jurisdiction of the Public Utilities Commission over "the transportation of passengers and property between points within this state" by all railroad companies which do business as common carriers, expressly exclude from such jurisdiction "street and electric railroads or other private railroads not doing business as common carriers."
2. Section 614-3, General Code, vesting in the Public Utilities Commission "the power and jurisdiction to supervise and regulate 'public utilities' and 'railroads' * * * and also to promulgate and enforce all orders relating to the protection, welfare and safety of railroad employees and the traveling public," applies only to the supervision and regulation of railroad companies doing business as common carriers.
3. Section 12557-1, General Code, providing that "it shall be unlawful for any common carrier owning or operating an engine or locomotive used to switch cars, to operate such engine or locomotive handling cars in any railroad yard or on any railroad track within the limits of this state unless * * * manned with a full crew of competent employees, which crew shall consist of at least one engineer, one fireman, one conductor, and two helpers," applies to common carriers only and is not applicable to private railroads not doing business as common carriers.
4. Where a corporation engaged in the manufacture of steel owns and maintains numerous railroad tracks within the limits of its plant, over which tracks its own locomotives are operated solely in the switching of cars specially designed for the handling of scrap steel, lime, ores, hot ingots and other materials and products used in the business of steel manufacturing and in the switching of standard freight cars throughout the plant, such use of the locomotives within the plant limits is a plant activity and is not such an operation as will make the manufacturing corporation a common carrier. Employees of a common-carrier railroad, who are assigned by it to operate such locomotives and equipment pursuant to a contract between the manufacturing corporation and railroad company, whereby the manufacturing corporation supervises and directs such employees and pays their wages through the railroad company, are not, while engaged in operating such locomotives and equipment, in the employ of a common carrier and are not within the regulatory provisions of Sections 12557-1 to 12557-3, inclusive, General Code.
APPEAL from the Public Utilities. Commission.
The Brotherhood of Locomotive Firemen and Enginemen and the Brotherhood of Railroad Trainmen, on March 20, 1945, filed with The Public Utilities Commission of Ohio a complaint wherein it was charged that train crews of the River Terminal Railroad Company (hereinafter referred to as "railroad company") under the direction of their supervisors were performing switching service within the plant of the Republic Steel Corporation (hereinafter referred to as. "Republic") at Cleveland, Ohio, with less than a full crew in violation of Sections 12557-1 to 12557-3, inclusive, General Code.
The complaint states that crews, consisting only of an engineer, fireman, conductor and one ground man, were operating on tracks of a common carrier, the railroad company, in violation of the provisions of the statute above referred to and that "an unsafe condition exists when the crews performing the switching service for the Republic Steel Corporation (short crew) intermingles with river terminal crews on the tracks of the River Terminal Railroad Company."
A copy of the complaint and of the report of an investigation, made by an inspector, directed by the commission, pursuant to the request of the complainants, were served upon the railroad company and that company filed an answer accompanied by numerous exhibits.
The case was submitted to the Public Utilities Commission upon the complaint, the answer and the exhibits filed by the railroad company and the report of the inspector. The facts are not in dispute. The corporations involved have been treated as separate entities, the record in no wise disclosing that either is the subsidiary of the other or any purpose or intent by collusion or otherwise to consummate an evasion of any statutory requirements.
Republic operates a large plant with blast furnaces, open hearths and machinery which are used in the production of steel. Within its plant are numerous railroad tracks over which are operated Diesel electric locomotives and some steam equipment in switching cars between various sections of the plant. Special cars for the handling of scrap steel, iron, ores, hot ingots, slag and other materials, products and wastes used in the business of making steel, are switched between various locations inside the plant. Some standard freight cars are also thus handled within the plant.
The railroad company is a common carrier and operates without but in the vicinity of this plant. It delivers inbound freight to certain tracks outside the plant limits from which the switching crews, working inside the plant, make delivery to the proper department within the plant. The railroad company also receives on these, switches steel and other products shipped from the plant and does some switching work within the limits of the plant proper. However, in all operations by the railroad company, a full crew is maintained. The complaint is directed solely to the operation by Republic of its own or leased locomotives within its plant limits, with less than the full crew, which, under the statute, common carriers are required to employ and use.
The record discloses that Republic has leased certain tracks adjacent to its plant from the railroad company, and that in accordance with the terms of the contract the railroad equipment of Republic is serviced by employees from the railroad company, all the employees who operate the Diesel engines and other equipment within the plant of Republic being employees of the railroad company. The wages of such employees are paid by Republic through the railroad company, and an additional 15% is paid to the latter company.
The record discloses that, although the right to employ, dismiss or discipline such employees is retained by the railroad company, it is expressly provided that such employees while working on engines owned or leased by Republic shall be under the direct supervision of Republic, and that Republic has the power to determine whether employees furnished are satisfactory and may require their discontinuance or removal.
In the bearing before the commission, the complainants were represented by the Co-operative Legislative Committee of the Transportation Brotherhoods, composed of the Brotherhood of Locomotive Engineers, the Brotherhood of Firemen and Enginemen, Order of Railway Conductors, and the Brotherhood of Railroad Trainmen.
The following is the material portion of the finding and order of the commission:
"That this matter has been before the commission on previous occasion and the commission has held that it has no jurisdiction;
"That the switching operations complained against are performed on property either owned by or leased to the Republic Steel Corporation;
"That the employees of the River Terminal Railway Company are assigned to work on property leased to or owned by the Republic Steel Corporation by said railway company pursuant to a contract with said steel corporation, and
"That all locomotives, whether Diesel or steam, which are manned by four-men crews, are leased to or owned by the Republic Steel Corporation.
"We cannot find by reading Sections 501, 502, 614-3, 12557-1, 12557-2, 12557-3 or any other section of the General Code, where any jurisdiction is given this commission to regulate the operations of a private railroad on private or leased property. It is, therefore
"Ordered, the complaint filed herein be dismissed."
An appeal to this court from the order of the Public Utilities Commission was duly perfected.
Messrs. Herbert Dombey, for appellant the Co-operative Legislative Committee of the Transportation Brotherhoods.
Mr. Hugh S. Jenkins, attorney general, and Mr. Harry G. Fitzgerald, Jr., for appellee Public Utilities Commission.
There is but one question presented to this court and that is whether the decision of the Public Utilities Commission that it has no jurisdiction to regulate the operations of a private railroad upon private or leased property is erroneous.
The basis of the complaint is a claimed violation of Section 12557-1, General Code, which is as follows:
"It shall be unlawful for any common carrier owning or operating an engine or locomotive used to switch cars, to operate such engine or locomotive handling cars in any railroad yard or on any railroad track within the limits of this state unless * * * manned with a full crew of competent employees, which crew shall consist of at least one engineer, one fireman, one conductor, and two helpers * * *."
It is well settled that the jurisdiction of the Public Utilities Commission of this state is conferred only by statute and it has no authority beyond that thus conferred. That jurisdiction in the respect under consideration in this case is defined and limited by the provisions of Sections 501, 502 and 503, General Code. These sections provide, in part, as follows:
Section 501. "The term 'railroad' as used in this chapter shall include all corporations * * * which owns, operates, manages or controls * * * as a common carrier in this state * * *."
Section 502. "This chapter shall apply to the transportation of passengers and property between points within this state, * * * to all railroad companies * * * which do business as common carriers, upon or over a line of railroad within this state, and to a common carrier engaged in the transportation of passengers or property * * *."
Section 503. "This chapter shall not apply to street and electric railroads * * * or other private railroads not doing business as common carriers."
It is to be observed that these provisions limit the authority of the Public Utilities Commission to the supervision of common carriers and expressly exclude jurisdiction as to "private railroads not doing business as common carriers."
The parties to this appeal concede that the River Terminal Railroad Company is a common carrier and a complaint was filed against that company. The Republic Steel Corporation is not a party to this proceeding. The complaint in effect charges that the River Terminal Railroad Company is operating the equipment owned by the Republic Steel Corporation, and that the railroad company in such operation is violating the provisions of Sections 12557-1 to 12557-3, inclusive, General Code.
The question directly and specifically presented, therefore, is whether the operation of the equipment, owned or leased by Republic, within the limits of its plant upon tracks owned or leased by it, such operation being by employees of the railroad company under the arrangement stated, makes the railroad company a common carrier as to such operation. It must be borne in mind that control and supervision of this equipment and of the crews operating such equipment are committed to and exercised by Republic; that, although the right to employ, dismiss or discipline such employees is retained by the railroad company, such employees while working on engines owned or leased by Republic are under the direct supervision of Republic; and that Republic also has the power to determine whether the employees furnished are satisfactory and may require their discontinuance or removal.
It is stated in 9 American Jurisprudence, 448, Section 37, as follows:
"The question as to whether a particular person or agency is or is not a common carrier is a mixed question of law and fact. What constitutes a common carrier is a question of law, but whether one charged with being a common carrier has by his conduct brought himself within that definition is a question of fact to be determined from the evidence in each case as it arises."
The facts are not in controversy. The record shows that as a matter of law the operation in question is not within the jurisdiction of the Public Utilities Commission by reason of the fact that the railroad company is not engaged in an operation as a common carrier in respect to the operations within the limits of the Republic plant. This case does not present a situation where a railroad company is using private tracks as a common carrier. Such an operation is clearly subject to the jurisdiction of the Public Utilities Commission. See Morgan Run Ry. Co. v. Public Utilities Commission, 98 Ohio St. 218, 120 N.E. 295.
The instant case presents a situation wherein a manufacturing corporation has established its own intraplant railroad and does no business which could in any way make it a common carrier. Indeed it is not urged that Republic is a common carrier. Such operations as it conducts are clearly exempt from regulations applicable to common carriers. Persons or corporations transporting their own property are neither common carriers nor private carriers for hire, and, therefore, not subject as such to regulations by the Public Utilities Commission of the state. Public Service Commission v. Kolb's Bakery Dairy, Inc., 176 Md. 191, 4 A.2d 130; Crane Iron Works v. United States, 209 F., 238. See, also, Crane Rd. Co. v. Central Rd. Co. of N.J., 248 Pa. 333, 93 A. 1076, and Dawkins Lumber Co. v. L. Carpenter Co., 213 Ky. 795, 281 S.W. 1013.
Does the fact that the railroad company, pursuant to its contract with Republic, provide employees who operate the engines and equipment of Republic within the plant of the Republic serve to make that operation subject to regulation by the commission? It is urged that special authority is conferred upon the commission in this case by reason of the provisions of Section 614-3, General Code. It provides as follows:
"The Public Utilities Commission of Ohio is hereby vested with the power and jurisdiction to supervise and regulate 'public utilities' and 'railroads' as herein defined and provided and to require all public utilities to furnish their products and render all services exacted by the commission, or by law, and also to promulgate and enforce all orders relating to the protection, welfare and safety of railroad employees and the traveling public."
The definitions of the terms, "public utilities," and, "railroads," as found in Sections 614-2 a and 501, General Code, must be applied in ascertaining the meaning and effect of Section 614-3, General Code. As hereinbefore demonstrated, the word, "railroad," means common carrier. It is only over such railroads that the Public Utilities Commission of the state has jurisdiction.
It is significant that, in the settlement of certain differences long existing between the railroad company and the various brotherhoods — engineers, firemen and trainmen — a contract was entered into whereby it was agreed that the "crewing of engines" operated by the Republic Steel Corporation "shall be performed by an engineer, fireman and two trainmen constituting a crew for each engine as Republic Steel Corporation in its discretion may require."
The Public Utilities Commission did not err in its decision that it had no jurisdiction in the matter presented or in its order dismissing the complaint. Its order is, therefore, affirmed.
Order affirmed.
WEYGANDT, C.J., TURNER, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.