Opinion
No. 31326
Decided August 4, 1948.
Public Utilities Commission — Relocation of railroad switching tracks in freight yard — Appeal to Supreme Court dismissed — No final order by commission — Section 544, General Code.
APPEAL from the Public Utilities Commission.
In June of 1944, the representatives of four railway brotherhoods addressed a communication to the Public Utilities Commission calling its attention to a claimed unsafe condition between tracks 15 to 20 in the New York Central yards at Springfield, Ohio, and citing Sections 614-3 and 8976-1, General Code.
One month later, an inspector of the commission filed a report setting forth detailed measurements of the. aforementioned six tracks, and stating that the only solution to eliminate the unsafe condition was to increase the track centers on those tracks by taking out one track.
Five months thereafter, the same representatives of the brotherhoods addressed to the Public Utilities Commission a communication requesting that another report be made and that proper action be taken with the railroad to eliminate the "death trap."
Within a month thereafter, the inspector of the commission filed a report which referred to his former report recommending removal of one track to increase track centers, stated that injuries to a yard clerk showed there was a hazardous condition, and recommended that the railroad company arrange to correct. the unsafe condition by increasing the track centers.
On June 26, 1945, the Public Utilities Commission issued a citation for the railroad to appear on July 12 and to answer the complaint and show cause why "an order shall not enter in said matter." The case was continued at the request of attorneys for the railroad, with the consent of the then attorney for the brotherhoods.
On September 12, 1945, a hearing was held before an attorney examiner of the Public Utilities Commission, during which the Co-operative Legislative Committee of Transportation Brotherhoods became the representative of the brotherhoods, and in June 1946 the attorney examiner filed his report finding the track centers between tracks 15 to 20, inclusive, constituted an unsafe condition and recommending that an order issue requiring the railroad within a reasonable time to submit plans for altering track centers in the Springfield yards to eliminate a claimed "hazardous condition." Within a week thereafter the commission issued an order directing and requiring the railroad within 30 days to prepare and submit to the commission plans for the alteration of track centers in the Springfield yards to eliminate the hazardous condition.
In October 1946, the commission granted a rehearing, which opened in December with the railroad objecting to the jurisdiction of the commission on the ground that the tracks involved are permanent structures installed prior to the enactment of Sections 614-3 and 8976-1, General Code.
On January 10, 1947, an attorney examiner filed a report finding the evidence tended to show that conditions in the Springfield yards with reference to track centers affecting tracks 15 to 20 constituted an unsafe condition for employees, and recommending that the railroad eliminate the hazardous conditions as to the clearance.
On October 30, 1947, the Public Utilities Commission promulgated an order which stated, in part:
"We do not think that the record in this case justifies us in the promulgation of an order at this time. We think that the facts and evidence should be reasonably clear before this commission order a relocation of switching tracks that would be costly, and which would set a precedent for all cases where similar facts are presented.
"The motion of the New York Central Railroad Company, in which the question of jurisdiction was raised, is overruled.
"It is, therefore
"Ordered, that this commission shall retain jurisdiction of the within citation and that said railroad shall make a report of all accidents occurring in said railroad yards connected in any way with track clearances, every six months. The commission shall have such further hearing or hearings and shall make such further orders as it deems necessary."
On November 21, 1947, the complainant filed an application for rehearing, which was overruled by the commission, and complainant perfected an appeal to this court.
Messrs. Herbert Dombey, for appellant.
Mr. Hugh S. Jenkins, attorney general, and Mr. Harry G. Fitzgerald, Jr., for appellee.
Section 544, General Code, provides:
"A final order made by the commission shall be reversed, vacated or modified by the Supreme Court on appeal, if upon consideration of the record such court is of the opinion that such order was unlawful or unreasonable."
By virtue of the concluding paragraph of the order of October 30, 1947, the Public Utilities Commission not only retained jurisdiction of the citation pending reports by the railroad but for further hearings and orders.
No final order having been promulgated by the commission, this proceeding on appeal is dismissed. See Cincinnati Gas Electric Co. v. Public Utilities Commission, 146 Ohio St. 228, 65 N.E.2d 68.
Appeal dismissed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.