Opinion
No. 42217.
March 26, 1962.
1. Public Service Commission — jurisdiction — violations of Full Crew Law.
The Public Service Commission is vested with the jurisdiction to entertain petitions by labor union to determine if a railroad is violating the Full Crew Law, and to issue appropriate orders that such violations cease if a violation is found. Secs. 7702, 7759, 7820, Code 1942.
2. Public Service Commission — Full Crew Law — powers of Commission — enforcement of Commission orders.
The Public Service Commission has no power to issue injunctions or to enforce an injunction or to convict a railroad as an offender against the Full Crew Law, and the statutes contemplate that if the prosecution of the railroad is had, it must be done in the criminal courts, and if the Commission order is not obeyed and enforcement procedure is necessary, the Commission may apply to the Chancery Court for an injunction. Sec. 7716-30, Code 1942.
3. Railroads — Full Crew Law — valid exercise of state's police power.
The Full Crew Law is a valid exercise of the state's police power. Secs. 7759, 7760, Code 1942.
4. Statutes — Full Crew Law — a penal statute — strictly construed.
The Full Crew Law is a penal statute and should be strictly construed. Secs. 7759, 7760, Code 1942.
5. Railroads — Full Crew Law — mail porter would qualify as "member of the crew".
Where primarily mail trains consisted of an average of seven cars, powered by a diesel engine and a crew of an engineer, fireman, conductor, combination flagman and baggageman and a mail porter, mail porter would qualify as a "member of the crew" required to constitute a full crew under the Full Crew Law. Sec. 7759, Code 1942.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, J.
Ramsey, Ramsey Bodron, Vicksburg, for appellant.
I. Findings of the Public Service Commission on appeal are prima facie correct and the Court cannot substitute its judgment for that of the Commission's and disturb those findings where there is any substantial basis in the evidence to support the findings or where the Commission's ruling is not capricious or arbitrary or manifestly against the evidence. Cobb Bros. Constr. Co. v. Gulf, M. O.R. Co., 213 Miss. 706, 57 So.2d 570; Dixie Greyhound Lines v. Mississippi Public Service Comm., 190 Miss. 704, 200 So. 579; Tri-State Transit Co. v. Greyhound Lines, 197 Miss. 37, 19 So.2d 441.
II. The Public Service Commission has the power and authority to see that all laws dealing with the safe operation of railroads in this state are being complied with in the legitimate exercise of the police power of the state and may require a railroad not complying with specific statutes enacted for the safe operation of same to cease and desist from unlawful and unsafe operations. Beal v. Missouri P.R. Co., 108 F.2d 897; Chicago, R.I. P.R. v. Arkansas Public Service Comm., 219 U.S. 453; New York, C. St. L.R. Co. v. Public Utility Comm., 123 Ohio State 524, 176 N.E. 71.
Wise, Smith Carter, Jackson; J.H. Wright, John W. Freels, John W. Foster, Chicago, Illinois, for appellee.
I. The Public Service Commission of Mississippi is without jurisdiction to hear and determine a complaint filed by the Brotherhood of Railroad Trainmen alleging that certain trains of the Railroad Company are being operated in violation of Section 7759 of the Mississippi Code of 1942 and to issue an order to the Railroad Company directing it to cease and desist from operating said trains. Gulf S.I.R. Co. v. Railroad Commission, 94 Miss. 124, 49 So. 118; Illinois Cent. R. Co. v. Mississippi R. Comm., 143 Miss. 805, 109 So. 868; Mississippi R. Comm. v. Gulf S.I.R. Co., 78 Miss. 750, 29 So. 789; South Mississippi Airways v. Chicago Southern Airlines (Miss.), 26 So.2d 445; Secs. 7760, 7820, Code 1942.
II. The Railroad Company is operating its trains No. 205 and 208 in compliance with the requirements of Section 7759 of the Mississippi Code of 1942. Beal v. Missouri P.R. Co., 108 F.2d 897; Bressler v. Chicago N.W.R. Co., 42 N.W.2d 617; Chicago, R.I. P.R. v. Arkansas Public Service Comm., 219 U.S. 453; Citizens of Stringer v. Gulf, M. O.R. Co., 129 Miss. 1, 90 So.2d 25; Cobb Bros. Constr. Co. v. Gulf, M. O.R. Co., 213 Miss. 706, 57 So.2d 570; Dixie Greyhound Lines v. Mississippi Public Service Comm., 190 Miss. 704, 200 So. 579; In re Southern Pac. Co., 37 N.M. 11, 16 P.2d 402; Illinois Cent. R. Co. v. Coin, 145 Miss. 399, 110 So. 782; Illinois Cent. R. Co. v. Jackson Ready-Mix Concrete, 243 Miss. 72, 137 So.2d 542; Missouri P.R. Co. v. Norwood, 51 S.Ct. 459; New York, C. S.L.R. Co. v. Public Utilities Comm., 123 Ohio St. 524, 176 N.E. 71; Tri-State Transit Co. v. Greyhound Lines, 197 Miss. 37, 19 So.2d 441; West Bros., Inc. v. Illinois Cent. R. Co., 220 Miss. 335, 25 So.2d 723; Western P.R. Co. v. State of Nevada, 69 Nev. 66, 241 P.2d 846; Winter v. Hardester, 232 Miss. 200, 98 So.2d 629, 71 A.L.R. 2d 982; Secs. 7759, 7761, Code 1942.
III. Where an order of the Public Service Commission is not supported by substantial evidence or is capricious or arbitrary or is beyond the power of the Commission to make or violates a constitutional right of a party, a court of competent jurisdiction may review the matter on appeal, determine the issues as a matter of law based on the evidence in the record and enter judgment accordingly. Mississippi Public Service Comm. v. Illinois Cent. R. Co., 242 Miss. 853, 136 So.2d 619; Mississippi Public Service Comm. v. Illinois Cent. R. Co., 235 Miss. 46, 108 So.2d 573; Mississippi Public Service Comm. v. Illinois Cent. R. Co., (Miss.), 130 So.2d 254; Western Union Telegraph Co. v. Mississippi R. Comm., 74 Miss. 80, 21 So. 15; Yazoo M.V.R. Co. v. Mississippi R. Comm., 166 Miss. 359, 146 So. 430.
This appeal involves (1) whether the Public Service Commission has power to investigate and determine if a railroad company is violating Section 7759, Mississippi Code of 1942, known as the Full Crew Law, and (2) whether the evidence supported a finding that the railroad company was violating said statute.
The Brotherhood of Railroad Trainmen filed a petition with the Commission charging that the Illinois Central Railroad Company was violating the Full Crew Law and requesting a citation be issued commanding the railroad company to show cause why it should not be held for the penalty provided by Code Section 7759, and why it should not be ordered to cease violating said statute. The Commission issued the citation and the railroad company denied any violation of the statute and moved to dismiss the proceedings on the ground that the Commission was without jurisdiction. The motion to dismiss was overruled and a hearing was had, and the Commission entered an order finding that the railroad company was operating its trains Nos. 205 and 208 between Vicksburg and Meridian in violation of Code Section 7759, and ordering the railroad company to cease and desist operating said trains Nos. 205 and 208 without a full crew as required by law. The railroad company appealed to the circuit court, which reversed the order of the Commission and dismissed the cause. The Brotherhood of Railroad Trainmen perfected an appeal to this Court.
We are of the opinion that the only material facts which the Commission could consider on the question whether appellee was violating the statute were facts concerning the crew itself, in short, whether there was a full crew within the meaning of the statute. The proof shows that trains Nos. 205 and 208 operate between Meridian and Vicksburg, and each of these trains, one traveling west and one traveling east, consists of an average of seven cars. The testimony on behalf of appellant showed without dispute that the train is powered by a diesel engine and not by steam. The railroad employs and pays the salaries of the following employees in the operation of said trains: (1) Engineer, (2) fireman, (3) conductor, (4) combination flagman and baggage man, and (5) a mail porter, whose duties consist mainly of handling mail pouches. There are other persons working on said train who are employees of the United States Post Office Department in the operation of the Railway Post Office. The train carries a passenger coach and the other cars consist of mail and baggage cars. The number of passengers normally carried by said train is negligible and according to the conductor, who testified for appellant, "(I)t is not really a passenger train anymore, it is a mail train." On an average day, each train carries between 500 and 600 sacks of mail. A train porter, or a pullman porter, or coach porter does not perform flagging service or other duties concerned with the actual operation of the train. Neither does the mail porter or the mail handler qualify to perform any flagging service or other services in connection with the movement or safety of the train. Neither does the mail handler perform any services in connection with the passengers on said train, although he is under the control of the conductor and assists in such matters as handling a corpse on and off the train.
The first question for our decision is whether the Public Service Commission has jurisdiction to entertain the petition, conduct a hearing, make its findings as to whether there is a violation of Code Section 7759, and order the railroad company to cease and desist such violation.
Code Section 7820 is a part of Chapter 7, Title 28, Miss. Code of 1942, and is as follows:
"The commission to see that the laws are complied with. — It is the duty of the railroad commission to call for information from railroads and other common carriers from time to time, and to make investigations to determine whether the laws are being complied with on their several parts; and it is its duty to see that all the laws, civil and penal, whether contained in this chapter or not, affecting railroads and other common carriers, are complied with, and to prosecute all offenders."
(Hn 1) The powers vested in the railroad commission under said Code Section 7820 are now exercised by the Public Service Commission under the terms of Code Section 7702. The Full Crew Law, Code Section 7759, is one of the laws affecting railroads concerning which the Public Service Commission has jurisdiction to make investigations to determine whether such law is being complied with on the part of the railroad; and it is the duty of the Public Service Commission to see to it that this law is enforced. We hold that the Commission is vested with jurisdiction to entertain petitions such as the one here in question and to make investigations in the manner followed in this case to determine whether or not the full crew law is being violated, and to issue appropriate orders that such violations cease if a violation is found.
(Hn 2) The enforcement of the order is another matter not here involved. The Commission itself has no power to issue injunctions or to enforce an injunction or to convict an offender. The statutes contemplate that if a prosecution of a railroad is to be had, it must be done in the criminal courts, and if a Commission order is not obeyed and enforcement procedure is necessary, the Commission may, in a proper case, apply to the chancery court for an injunction. Code Section 7716-30.
The next question for our decision is whether the proof in this case is sufficient to justify a finding by the Commission that appellee violated Code Section 7759 in the operation of trains Nos. 205 and 208. Section 7759 and Section 7760, providing the penalties for the violation of the Full Crew Law, are as follows:
"7759. Full crew law — prescribing number of employees for a train. It shall be unlawful for any railroad propelled by steam doing business in the State of Mississippi to operate or run over its lines, or any part thereof, or suffer or permit to be run over its lines, or any part thereof, outside of yard limits, any passenger, mail or express, train carrying passengers, or any freight, work or construction train without a crew consisting of not less than one engineer, one fireman, one conductor, one brakeman or porter and one competent flagman. It shall be unlawful for any such railroad to operate or run over its lines, or any part thereof, or suffer or permit to be operated or run over its lines, or any part thereof, outside of yard limits, any passenger, mail, express, freight, work or construction train, propelled by gasoline, electricity, or other form of motive power, except steam, without a crew consisting of not less than one engineer or motorman, one conductor and one brakeman or baggageman, or competent flagman; provided, however, that if any such train mentioned in this section consists of three cars, an additional porter, brakeman, baggageman, or competent flagman shall be furnished, and on such trains of four cars or more, one additional man shall be added to the crew."
"7760. Penalty for operating with short crews. — Any railroad doing business in the State of Mississippi who shall send out on its road, or any part thereof, outside of yard limits, any train of the classes enumerated in Sections 1 and 2 (Sec. 7759, supra) of this act, which is not manned in accordance with the provisions of these sections, shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than $100.00 nor more than $1,000.00 for each offense, and each violation of Sections 1 and 2 (Sec. 7759, supra) shall constitute a separate offense."
(Hn 3) Both parties to this litigation concede that the Full Crew Law is a valid exercise of the police power of the State. Appellant contends that the statute is not penal. On the other hand, appellee contends that the statute is penal, and should be strictly construed. (Hn 4) We hold that the statute is penal. It provides for a penalty of not more than $1,000 for each offense, which means that the railroad could be fined $1,000 each time it violated the statute. Obviously, this is a penal statute.
(Hn 5) Since the trains in question operate by diesel power, the second sentence of Section 7759 applies rather than the first sentence. These trains, Nos. 205 and 208, regularly carry more than four cars, and the minimum crew required by the statute is (1) an engineer or motorman, (2) a conductor, (3) a brakeman or baggageman, (4) an additional porter, brakeman, baggageman or competent flagman, and (5) one additional man shall be added to the crew. The question narrows to whether the mail porter, or as some refer to him, the mail handler, can be counted as one of the five required to constitute a full crew. Appellant contends that the additional man required to be added to the crew means a man qualified to assist in operating the train such as flagging, and that since the mail porter is not so qualified, he is not a member of the crew. This contention would carry more force but for the fact that one man may be a porter, brakeman, baggageman, or flagman. The statute says that a porter may be a member of the crew. The statute refers to passenger, mail, express, freight and work trains. It is clear, therefore, that the porter who would qualify as a member of the crew on a mail train would be a mail porter and not a passenger porter because a passenger porter would have no services on a mail train.
The proof shows that there are pullman porters, passenger or coach porters, and mail porters, and the proof further shows that none of these porters perform services other than being a porter. In other words, they do not perform any services in connection with the safety of operations, such as flagging. Therefore, a porter, being named in the statute, may be one of the five-man crew required by the statute. The plain words of the statute require this construction.
We conclude, therefore, that the circuit court correctly reversed the case and dismissed the proceedings.
Affirmed.
McGehee, C.J., and Kyle, Ethridge and Jones, JJ., concur.