Opinion
No. 38632
Decided December 9, 1964.
Railroads — Full-crew law — Engine used to switch cars — Section 4999.08, Revised Code — "Engine or locomotive" construed — Tractor-like vehicle operated on rails or roads not included — Statutory construction.
1. Section 4999.08, Revised Code, being a penal statute, must be strictly construed.
2. Where reasonably possible, a statute should be given a construction which will avoid rather than a construction which will raise serious questions as to its constitutionality.
3. The words "engine or locomotive" as used in Section 4999.08, Revised Code, do not include a tractor-like vehicle equipped with both railroad wheels and rubber tires which may be operated either on railroad tracks or on roads and which is used to move railroad cars around a repair-shop yard. ( New York Central Rd. Co. v. Public Utilities Commission, 121 Ohio St. 383, distinguished.)
APPEAL from the Public Utilities Commission.
Appellant, herein referred to as the brotherhoods, filed a complaint with the Public Utilities Commission relative to operations being conducted by the railroad in Jackson, Ohio.
The railroad operates a repair shop at Jackson for disabled or defective railroad cars. To move single cars or a few cars at a time around the repair-shop yard, the railroad employs a Trackmobile, a tractor-like vehicle equipped with both railroad wheels and rubber tires and which may be operated either on railroad tracks or roads. Prior to use of the Trackmobile, the railroad had used a Ford tractor to move these cars around the repair-shop yard. The railroad occasionally permitted the Trackmobile to be operated by one driver working alone, but the usual practice was to have such driver assisted by one or two helpers on the ground to work switches and help keep a lookout while cars were being moved.
The brotherhoods contend that the Trackmobile is an engine or locomotive within the meaning of Section 4999.08, Revised Code, which provides, as far as pertinent:
"No common carrier owning or operating an engine or locomotive used to switch cars shall operate such engine or locomotive handling cars in any railroad yard or on any railroad track within the limits of this state unless every such engine or locomotive, while so handling or switching such cars, is manned with a full crew of competent employees, which crew shall consist of at least one engineer, one fireman, one conductor, and two helpers. * * *
"Any common carrier which violates this section shall be fined not less than one hundred nor more than five thousand dollars.
"Any superintendent, assistant superintendent, trainmaster, yardmaster, or any other employee who has authority over the movement of any engine or locomotive who authorizes a violation of this section, or who knowingly permits a violation of this section, shall be fined not more than three hundred dollars or imprisoned not more than eighteen months, or both."
The brotherhoods contend further that the foregoing described operation of the Trackmobile was unsafe and should be corrected under the provisions of Section 4905.04, Revised Code, which provides so far as pertinent:
"The Public Utilities Commission is hereby vested with the power and jurisdiction to supervise and regulate * * * railroads, * * * to promulgate and enforce all orders relating to the protection, welfare, and safety of railroad employees * * *."
The Public Utilities Commission found that the brotherhoods had failed to establish either that the Trackmobile was an engine or locomotive within the meaning of Section 4999.08, Revised Code, or that the railroad's operation of the Trackmobile was unsafe; and by its order dismissed the complaint. The cause is now before this court on an appeal from that order.
Messrs. Tyler, Richards Grieser and Mr. William A. Richards, for appellant. Mr. William B. Saxbe, attorney general, Mr. Jay C. Flowers, Messrs. Alexander, Ebinger, Wenger Holschuh and Mr. John D. Holschuh, for appellees.
Section 4999.08, Revised Code, being a penal statute, must be strictly construed. Erie Rd. Co. v. Public Utilities Commission (1943), 141 Ohio St. 342, 48 N.E.2d 100.
Apart from certain language in the opinion in New York Central Rd. Co. v. Public Utilities Commission (1929), 121 Ohio St. 383, 169 N.E. 299, it would be very difficult to give serious consideration to a contention that this Trackmobile was an "engine or locomotive" within the meaning of those words as used in Section 4999.08, Revised Code. However, it is stated in that opinion that those words include any "self-propelled vehicle * * * used to switch cars" regardless of its name. It may be observed that nothing resembling such a statement is found in the syllabus of that case. Furthermore, that language must be read in the light of the facts of that case which disclose that the "vehicle" there involved was a locomotive, as that word has always been understood, even though it had a crane upon it.
Also, if the word "engine" in Section 4999.08, Revised Code, were construed to include this Trackmobile, a serious question would be raised as to whether the resulting application of the statute would be so arbitrary and unreasonable as to violate constitutional limitations on the police power. See Pennsylvania Rd. Co. v. Driscoll (1938), 330 Pa. 97, 198 A. 130, 336 Pa. 310, 9 A.2d 621; Pennsylvania Rd. Co. v. Schwartz (1958), 391 Pa. 619, 139 A.2d 525; Northern Pacific Ry. Co. v. Weinberg (1943, District Court, Minnesota), 53 F. Supp., 133; Western Pacific Rd. Co. v. State (1952), 69 Nev. 66, 241 P.2d 846. Where reasonably possible, a statute should be given a construction which will avoid rather than a construction which will raise serious questions as to its constitutionality. United States, ex rel. Attorney General, v. Delaware Hudson Co. (1909), 213 U.S. 366, 407, 53 L. Ed., 836, 849, 29 S. Ct., 527, 535; United States v. Harriss, 347 U.S. 612, 618, 98 L. Ed., 989, 996, 74 S. Ct., 808, 812.
For the foregoing reasons, we are of the opinion that the words "engine or locomotive" as used in Section 4999.08, Revised Code, do not include a tractor-like vehicle equipped with both railroad wheels and rubber tires which may be operated either on railroad tracks or on roads and which is used to move railroad cars around a repair-shop yard.
The Public Utilities Commission found that the brotherhoods had failed to establish that the railroad's operation of the Trackmobile was unsafe. On the record before us, we are of the opinion that that finding is not against the weight of the evidence.
The order of the Public Utilities Commission being neither unreasonable nor unlawful is affirmed.
Order affirmed.
ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.