Opinion
No. 32845
Decided March 26, 1952.
Public Utilities Commission — Orders regulating transportation of persons or property by railroad — Section 585, General Code — Opportunity to be heard prerequisite to final order — Order issued without hearing — Application for rehearing a complaint that regulation unreasonable — Error to deny application for hearing — Due process requires reasonable opportunity to be heard.
1. An application by a railroad for a rehearing, in a proceeding wherein the Public Utilities Commission has without any hearing made an order regulating the transportation of persons or property by such railroad, should be treated by the commission as a complaint that such regulation is unreasonable.
2. It is error for the commission to deny such application and thereby refuse to provide any hearing as to the reasonableness of such order.
3. Due process requires that parties affected by any temporary action of the commission taken without a hearing under Section 585, General Code, be thereafter promptly given a reasonable opportunity to be heard.
4. No final order may be issued by the commission under Section 585, General Code, without according to the parties affected by such order a reasonable opportunity to be heard.
APPEAL from the Public Utilities Commission.
The Public Utilities Commission received a letter dated November 7, 1950, reading as follows:
"The Transportation Brotherhoods Cooperative Legislative Committee files the following complaint relative to unsafe conditions existing on the Ohio Central Lines of the New York Central Railroad.
"Since the maintenance employees have went on the five day a week schedule, the maintaining of the tracks have been reduced. On the western division or between Columbus and Toledo, there are numerous places where the track conditions have become unsafe due to lack of attention. I am also informed that track conditions in the Columbus yard are very bad in spots. The passing of heavy engines over these bad spots or bad switches, creates a dangerous or hazardous condition for the engineer and fireman riding said engine in the performance of their duties.
"May we have an inspector assigned to make a complete investigation of this complaint and corrective action taken, furnishing copy of inspector's report and subsequent action of commission to all concerned."
On March 13, 1951, the chief inspector of the commission wrote to the railroad as follows:
"Enclosed you will find copy of original complaint filed by the transportation brotherhoods and report of our inspector in regard to unsafe track conditions on the Ohio division from Columbus, Ohio, to Stanley Yard, Toledo, Ohio, and the West Columbus Yard, Columbus, Ohio, which are self explanatory.
"Will you kindly check into this matter and advise the commission as to what action will be taken to comply with recommendation outlined in this report?"
On April 2, 1951, the railroad wrote to the chief inspector of the commission as follows:
"With reference to your letters of March 12 and 13, please be advised that an inspection trip over said tracks was made during the week of March 19, 1951, by general manager C.F. Wiegele, chief engineer maintenance of way F.H. Simpson, district engineer G.T. Donahue, division engineer K.E. Dunn, and superintendent L.W. Fisher, to investigate the conditions alleged in the above complaints.
"All of these officials are recognized experts in various railroad operations and track conditions, and they concluded that bo dangerous or hazardous conditions exist on either the eastern or western division; that while certain sections may need some attention, the speed on the eastern division of 40 miles per hour, when and where used to that limit, is definitely a safe operating speed, under all existing circumstances. Likewise, the track conditions and operations on the western division are not unsafe as alleged in the complaint, nor does inspector Prior report that they are unsafe.
"However, we do recognize that during the winter months ordinarily the freezing and thawing of the ground and ballast have an effect upon the surface and alignment; however, our railroad is no different from others in this respect, particularly at this season of the year. Our engineers state that this condition corrects itself after the frost leaves the ground, and to facilitate the work of surfacing and aligning the track we have already restored our track maintenance forces, which are furnished mechanical equipment to loosen up the ballast and improve the drainage. The alleged rough spots referred to by inspectors Turner and Prior will be given the necessary attention.
"The view of our representatives that the tracks are safe for operations as now performed thereover is fortified by our record of no derailments or accidents due to track conditions on the two divisions, notwithstanding the unusually severe winter weather this year. Further, I am sure the commission will take due cognizance of the fact that our people certainly would not authorize or sanction any operations if they felt there was any danger of injury to our employees or damage to our equipment.
"Please be assured that the subject matter will be given full and proper consideration to the end that any alleged cause for complaint will be removed."
Thereafter, on May 7, 1951, the commission, without theretofore having held any hearing with respect to the complaint hereinbefore referred to, made an order providing in part:
"The commission, upon its own motion, coming now to consider the complaint filed herein on November 7, 1950, by the Cooperative Legislative Committee of the Transportation Brotherhoods of the state of Ohio alleging unsafe track conditions existing between Columbus, Ohio, and Toledo, Ohio, on the main track of the western subdivision, Ohio Central Division of the New York Central Railroad, and the subsequent investigations thereof and reports thereon as made and submitted by the commission's duly authorized representatives, has reasonable grounds to believe and is of the opinion:
"1. That said railroad's trackage, between West Columbus, Ohio, and Stanley, Ohio, is dangerous for the transportation of passengers at speeds greater than forty-five (45) miles per hour due to low joints, defective rail alignments and defective roadway surfaces.
"2. That the operation of passenger trains over the trackage of the New York Central Railroad, between West Columbus, Ohio, and Stanley, Ohio, should be restricted to a rate of speed not to exceed forty-five (45) miles per hour, subject to the further order of this commission.
"3. That said railroad's trackage, between West Columbus, Ohio, and Stanley, Ohio, is dangerous for the operation of freight trains at speeds greater than thirty (30) miles per hour due to low joints, defective rail alignments and defective roadway surfaces.
"4. That the operation of freight trains over the trackage of the New York Central Railroad, between West Columbus, Ohio, and Stanley, Ohio, should be restricted to a rate of speed not to exceed thirty (30) miles per hour, subject to the further order of this commission.
"It is therefore
"Ordered, that the New York Central Railroad be, and hereby it is, ordered to restrict the operation of its passenger trains, between West Columbus, Ohio, and Stanley, Ohio, to a rate of speed not to exceed forty-five (45) miles per hour subject to the further order of this commission. It is further
"Ordered, that the New York Central Railroad be, and hereby it is, ordered to restrict the operation of its freight trains, between West Columbus, Ohio, and Stanley, Ohio, to a rate of speed not to exceed thirty (30) miles per hour, subject to the further order of this commission * * *."
On May 15, 1951, the railroad company filed an application for a rehearing in the "proceeding wherein the commission entered its order dated May 7, 1951."
Thereafter, the commission entered an order denying the application of the railroad for a rehearing.
Thereupon, the railroad filed its notice of appeal to this court from the order of the commission of May 7, 1951, and from the order overruling the railroad's application for rehearing.
Mr. Robert R. Pierce and Mr. Wesley A. Wilkinson, for appellant.
Mr. C. William O'Neill, attorney general, and Mr. John P. Case, for appellee.
Since the words of Section 585, General Code, do authorize the commission to prescribe the rate of speed for passenger trains passing over tracks and other structures of a railroad, where the commission is of the opinion that they are unfit for the transportation of passengers with safety, and since the order of May 7, 1951, in the instant case did in part order a restriction as to speed in the operation of passenger trains, the questions presented for consideration in the instant case are not entirely the same as those presented for consideration in the case of the same style reported ante, 254. However, for the reasons stated in that decision, the commission had no authority without a hearing to issue that part of the order of May 7, 1951, in the instant case restricting the speed of freight trains.
In support of its position it is stated in the brief of the commission:
"* * * Appellant has sought a rehearing of an order which did not require an initial hearing, * * * and appellant has failed and neglected to seek relief before the commission under the statutory provisions of Sections 524 and 525, General Code, which provide that it `shall be entitled to be heard, represented by counsel and to have process to enforce the attendance of witnesses.'"
Section 524, General Code, provides so far as material:
"Upon complaint of a person * * * that any regulation or practice, affecting the transportation of persons or property, or any service in connection therewith, are in any respect unreasonable * * * the commission may notify the railroad complained of that complaint has been made, and ten days after such notice proceed to investigate such charges as provided in this chapter. Before proceeding to make such investigation, the commission shall give the railroad and the complainants ten days' notice of the time and place such matters will be considered and determined, and such parties shall be entitled to be heard and to have process to enforce the attendance of witnesses."
Section 525, General Code, provides so far as material:
"The next preceding section shall be construed to permit a railroad to make complaint with like effect as though made by any person * * *."
In our opinion, the railroad's application for rehearing "in the * * * proceeding wherein the commission entered its order dated May 7, 1951," clearly represented "a complaint" of the railroad that the speed "regulation * * * affecting the transportation of persons or property" promulgated in the commission's order of May 7, 1951, was "unreasonable." By denying that application and thereby refusing a hearing, the commission has failed to comply with the requirements of Sections 524 and 525, General Code.
It should be observed that, in supporting action of the commission taken under the provisions of Section 614-3, General Code, which vest the commission "with the power and jurisdiction * * * to promulgate and enforce all orders relating to the protection, welfare and safety of railroad employees and the traveling public," this court has stated that "when the railroad company is accorded a reasonable opportunity to be heard in such matter, there is no denial of due process." New York Central Rd. Co. v. Public Utilities Commission, 130 Ohio St. 548, 200 N.E. 759. Furthermore, it may be observed that there are numerous statutory provisions indicating that the General Assembly usually has contemplated hearings with respect to action of the Public Utilities Commission affecting others. See, for example, Sections 499-6, 546, 614-5 and 614-46 a, General Code.
There may be instances where the urgent need of protecting the public will justify immediate action under Section 585, General Code, during a proceeding instituted for the purpose of securing an order relating to the protection, welfare and safety of the traveling public. However, in such an instance, due process certainly requires that the parties affected by such immediate action be thereafter promptly given a reasonable opportunity to be heard. Certainly, it requires that such opportunity be given before any final order is made, even where such final order is authorized by Section 585, General Code.
The orders of the commission being unlawful and unreasonable are reversed, and the cause is remanded to the commission for further proceedings in accordance with this opinion.
Orders reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON, MATTHIAS and HART, JJ., concur.