Summary
In Toledo, we reviewed the General Assembly's specific preenactment wording changes in the Miller Act, in which the phrase "side track, spurs or other track" was deleted from the Act and the phrase "main track or tracks" was inserted in its place.
Summary of this case from State ex Rel. Toledo Edison Co. v. ClydeOpinion
No. 27315
Decided February 1, 1939.
Public Utilities Commission — Abandonment of railroad main track or tracks — Sections 504-2 and 504-3, General Code — Inapplicable to spur or side track — Legislative intent determined from Senate journal.
APPEAL from the Public Utilities Commission.
In 1904 the Board of Public Works of Ohio, pursuant to statute, granted to the Michigan Central Railroad Company the right to reconstruct and maintain a swing bridge over the Miami Erie Canal, subject to the conditions, among others, that the bridge would not interfere with free and uninterrupted transportation along the canal and that the railroad would give precedence at all times to traffic upon the canal.
In 1920 the state of Ohio abandoned the Miami Erie Canal for canal purposes and two years later conveyed to the city of Toledo a portion of the abandoned canal bed within the limits of that city.
The city of Toledo filed with the Public Utilities Commission an application to abandon "a spur track" of the Michigan Central Railroad Company, crossing the Anthony Wayne Boulevard, which is a portion of the abandoned canal bed owned by the city. It was alleged in the application that the state is planning and has commenced the construction of a super highway over and along the abandoned canal with termini at Cincinnati and Toledo, and that the highway cannot be completed until the crossing and bridge of the railroad have been eliminated. The prayer of the application was a request that the commission order the railroad to abandon that portion of its railroad and to remove therefrom its bridge, tracks, rails and other property.
The New York Central Railroad Company, lessee of the Michigan Central Railroad Company, moved to dismiss the application for want of jurisdiction.
The city moved that the railroad be required to furnish for inspection the books, records and other data material to the operation of the track or tracks involved in the proceeding, and to furnish to the commission the railroad's designation of the type and character of the track in question, particularly whether a main line, spur or switch track. The record does not disclose any action upon that motion, but a motion of the city to amend its application was granted by the commission.
In its amended application the city designated the property involved merely as a "portion of the track" or a "portion of said railroad," but repeated the allegation that it was "used solely for the purpose of serving the following concerns," naming nine.
The railroad renewed its motion to dismiss, which motion the commission sustained and dismissed the amended application, finding in its order that "the track herein involved and the service rendered thereby are not such track and service as contemplated by the provisions of Sections 504-2 and 3 of the General Code of Ohio, commonly known as the Miller Act and considering the provisions of these sections of the statute in connection with those of Section 519 of the General Code of Ohio, [the commission] * * * is of the opinion that it has no jurisdiction in the premises."
Upon application for further findings the commission "interpreting the amended application of the city of Toledo to relate to a portion of a certain spur track, it [the commission] found that its jurisdiction under Sections 504-2 and 3 of the. General Code of Ohio applied only to main tracks and the service rendered thereby, and that the track in question not being a main track the commission was without jurisdiction in the premises."
Mr. Martin S. Dodd, director of law, Mr. Joe H. Nathanson and Mr. John A. Forshey, for appellant.
Mr. Herbert S. Duffy and Mr. Thomas J. Herbert, attorneys general, Mr. Willis Woehrle Metcalf and Mr. Kenneth L. Sater, for appellee.
Messrs. Doyle Lewis, Mr. Milo J. Warner and Mr. C.T. Lewis, Jr., for The New York Central Railroad Company.
Adhering to former pronouncements, this court in the first paragraph of the syllabus in Village of New Bremen v. Public Utilities Commission, 103 Ohio St. 23, 132 N.E. 162, declared: "The Public Utilities Commission is an administrative board and has only such authority as the statute creating it has conferred."
Section 504-2, General Code, so far as applicable in this controversy, reads:
"No railroad as defined in Section 501 of the General Code, operating any railroad in the state of Ohio, and no public utility as defined in Section 614-2 a of the General Code furnishing service or facilities within the state of Ohio, shall abandon or be required to abandon or withdraw any main track or tracks or depot of a railroad or main pipe line, gas line, telegraph line or telephone toll line, electric light line, water line or steam pipe line, or any portion thereof, pumping station, generating plant, power station, or service station of a public utility, or the service rendered thereby, which has once been laid, constructed, opened and used for public business, nor shall be closed for traffic or service thereon, therein or thereover except as provided in Section 504-3. * * *" (Italics ours.)
Section 504-3, General Code, reads:
"Any such railroad or any political subdivision desiring to abandon, close, or have abandoned, withdrawn or closed for traffic or service all or any part of such main track or tracks, or depot, and any such public utility, or political subdivision desiring to abandon or close, or have abandoned, withdrawn or closed for traffic or service all or any part of such line or lines, pumping station, generating plant, power station or service station, shall first make application to the Public Utilities Commission in writing who shall thereupon cause reasonable notice thereof to be given, stating the time and place fixed by the commission for the hearing of said application. Upon the hearing of said application said commission shall ascertain the facts, and make its finding thereon, and if such facts satisfy the commission that the proposed abandonment, withdrawal or closing for traffic or service is reasonable, having due regard for the welfare of the public and the cost of operating the service or facility, they may allow the same; otherwise it shall be denied, or if the facts warrant, the application may be granted in a modified form. * * *" (Italics ours.)
It will be observed from the foregoing recital as to the original application filed with the Public Utilities Commission, the city first believed the property to be "a spur track," later sought information as to the designation used by the railroad, and finally referred to it as "a portion of the track," but continuously asserted it was used for a limited purpose.
The principal argument advanced by counsel in this review revolves around whether in Sections 504-2 and 504-3, General Code, the designation of "main" modifies only "track," whether the words "or any portion thereof" in Section 504-2 modifies "of a railroad," and as to what the words "any part of such line or lines" in Section 504-3, General Code, modify.
In a case where the decision of this court depends upon the interpretation of a statute, the ultimate inquiry necessarily must be to ascertain the legislative intent. To determine such intent the court may look to the journals of the Legislature and will give effect to any manifest intent as to meaning which may appear therein. Caldwell v. State, 115 Ohio St. 458, 466, 154 N.E. 792; State, ex rel. Peters, v. McCollister, 11 Ohio, 46, 56; State, ex rel. Construction. Co., v. Rabbitts, 46 Ohio St. 178, 19 N.E. 437; State, ex rel. Davis, v. Hildebrant, 94 Ohio St. 154, 164, 144 N.E. 55; 37 Ohio Jurisprudence, 702, Section 393; 59 Corpus Juris, 701, Section 393.
An examination of the journal of the Ohio Senate furnishes conclusive proof of legislative intent in this instance. Section 1 of Senate Bill No. 176, as originally introduced in the regular session of the Eighty-second General Assembly in 1917, read:
"No railroad as defined in Section 501 of the General Code, operating any railroad in the state of Ohio, shall abandon the same or any portion thereof, nor shall it abandon any side track, spur, other track, or depot which has once been laid, opened and used for public business, nor shall be closed for traffic thereon except as provided in Section 2 * * *." (Italics ours.)
Section 2 of that bill read:
"Any such company desiring to abandon or close for traffic any part of its line, side track, spurs or other track or depot, shall first make application to the Public Utilities Commission * * *." (Italics ours.)
By amendment from the floor of the Senate, the words "the same" in Section 1 were deleted and the words "any main track or tracks" were inserted in lieu thereof, and the words "nor shall it abandon any side track, spur, other track" were also deleted.
In Section 2 of the bill the words "side track, spurs or other track" were deleted, and the words "main track or tracks" were inserted in lieu thereof.
Our conclusion is that by deleting the words "side track, spurs or other track" the Legislature intended the Public Utilities Commission to have jurisdiction over "main track or tracks" and not over spur tracks. It therefore follows that the Public Utilities Commission was correct in refusing to assume jurisdiction in this proceeding and its order must be affirmed.
Order affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.