U.S. Supreme Court UNITED STATES v. BALTIMORE & O.R. CO., 293 U.S. 454 (1935)

[Page 293 U.S. 454, 455]

The Attorney General and Mr. Daniel W. Knowlton, of Washington, D.C., for the United States and the Interstate Commerce Commission.

Mr. Harold N. McLaughlin, of Cleveland, Ohio, for appellants Johnston and others.

Messrs. Jacob Aronson, of New York City, and Nye F. Morehouse, of Chicago, Ill., for appellees.

Mr. Justice BRANDEIS delivered the opinion of the Court.

This is a direct appeal from the decree of the federal court for Northern Ohio, setting aside an order, under the Boiler Inspection Act, entered by the Interstate Commerce Commission on January 5, 1933

At the date of the order there were in use in the United States about 31,597 steam locomotives equipped with hand reverse gear and 28,925 equipped with power reverse gear. [Footnote 1] Prior to the order, Rule 157, which prescribes the

[Page 293 U.S. 454, 456]

reverse gear on locomotives, left it optional with railroads to equip them with either hand operated or power operated reverse gear. [Footnote 2] The order amended that rule so as to require the railroads to equip 'with a suitable type of power operated reverse gear' all steam locomotives built on or after April 1, 1933; and similarly to equip, 'the first time they are given repairs defined by the United States Railroad Administration as Class 3, or heavier,' all steam locomotives then in road service 'which weigh on driving wheels 150,000 pounds or more,' and all then used in switching service 'which weigh on driving wheels 130,000 pounds or more.' The order required that, in any event, all such steam locomotives be so equipped before January 1, 1937; and that 'air operated reverse gear ( including thus power gear already installed) shall have a suitable steam connection' so arranged 'that in case of air failure steam may be quickly used to operate the re-

[Page 293 U.S. 454, 459]

to life or limb.' The substitution of power operated reverse gear for manually operated reverse gear might conceivably be found necessary to promote safety, even if it did so only indirectly by preventing the impairment of the health of engineers through excessive exertion or fatigue. To require the installation of power operated reverse gear is, in its nature, within the scope of the authority delegated to the Commission. For 'the power delegated to the Commission by the Boiler Inspection Act as amended is a general one. [Footnote 3] It extends to the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances.' Napier v. Atlantic Coast Line, 272 U.S. 605, 611, 47 S.Ct. 207, 209.

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sets the standard. By setting the standard it imposes requirements. The power to require specific devices was exercised before the amendment of 1915, and has been extensively exercised since.' In closing the opinion, we added: 'If the protection now afforded by the Commission's rules is deemed inadequate, application for relief must be made to it. The Commission's power is ample.'

In the Napier Case this Court listed in the margin 18 rules which had, before 1925, been amended by order of the Commission. [Footnote 4] Acting upon the suggestion there made by this Court, the state authorities and the Brotherhoods applied to the Commission for relief in proceedings similar to those here under review, and rules were prescribed by it. All the railroads either conceded its authority to do so or acquiesced in its final orders. Cab Curtain Case, 142 I.C.C. 199, 201; Fire Door Case, 151 I. C.C. 448, 450. Compare Rules for Testing Other than Steam Power Locomotives, 122 I.C.C. 414; Staten Island Rapid Transit Ry. Co. v. Public Service Commission (D.C.) 16 F.(2d) 313.

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in proper condition for use without unnecessary danger.' Baltimore & Ohio R.R. Co. v. Groeger, 266 U.S. 521, 529, 45 S.Ct. 169, 172. And the act conferred authority to prescribe by rule specific devices, or changes in the equipment, only where there are required to remove 'unnecessary peril to life or limb.' The power to make the determination whether the proposed device or change is so required, vests in the Commission. But its finding to that effect is essential to the existence of authority to promulgate the rule; and, as Congress has made affirmative orders of the Commission subject to judicial review, Chicago Junction Case, , 263-265, 44 S.Ct. 317,5 the order may be set aside unless it appears that the basic finding was made. Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 125.

The primary question of fact presented for determination was, as the report of the Commission states, 'whether the use of locomotives equipped with hand reverse gear, as compared with power reverse gear, causes unnecessary peril to life or limb.' The report discusses at some length the alleged advantages and disadvantages of the two classes of reverse gear and the expense which the proposed change would entail, and concludes with 'findings' that to a certain extent the change should be made. [Footnote 6] But whether the use of any or all types of

[Page 293 U.S. 454, 465]

the reviewing court (compare Virginian Ry. v. United States, 272 U.S. 658, 675, 47 S.Ct. 222), is not fatal to the validity of the order. It is true that formal and precise findings are not required, under section 14(1) of the Interstate Commerce Act (49 USCA 14(1), which declares that the report 'shall state the conclusions of the commission, together with its decision.' [Footnote 8] Compare Manufacturers' Ry. Co. v. United States, 246 U.S. 457, 487, 38 S.Ct. 383; Meeker v. Lehigh Valley R.R., 236 U.S. 412, 428, 35 S.Ct. 328, Ann. Cas. 1916B, 691, P.U.R. 1915D, 1072. That provision relieves the Commission from making comprehensive findings of fact similar to those required by Equity Rule 70 1/2 (28 USCA 723). But section 14(1) does not remove the necessity of making, where orders are subject to judicial review, quasi jurisdictional findings essential to their constitutional or statutory validity. [Footnote 9]

Affirmed. Footnotes

Footnote 1 As described in the carriers' bill: 'The reversing gear, or 'reverse gear' as it is usually called, of a steam locomotive is the mechanism which controls the position and movement of the locomotive valve gear and valves which admit steam in the cylinders, and it is by means of this mechanism that the direction of movement of the locomotive is controlled, and the proper and economical use of steam is accomplished. Two general classes of reverse gears are in use, viz.: (1) Manually operated reverse gears which depend upon the use of muscular force of the engineer and the force exerted by the counter-balancing weights and springs, for their operation; and (2) power reverse gears which supplement the above mentioned forces with an auxiliary mechanism which, in normal operation, brings the force of compressed air into play, so that less muscular effort is normally required to be put forth by the engineer in using this type of gear. The engineer operates either class of gear by means of either a lever or handwheel (used with screw type of gear) located near his seat-box in the locomotive cab.'

Footnote 2 Rule 157: 'Reversing Gear.-Reversing gear, reverse levers, and quadrants shall be maintained in a safe and suitable condition for service. Reverse lever latch shall be so arranged that it can be easily disengaged, and provided with a spring which will keep it firmly seated in quadrant. Proper counter balance shall be provided for the valve gear.'

Footnote 3 February 17, 1911, c. 103, 2, 36 Stat. 913, amended March 4, 1915, c. 169, 1, 38 Stat. 1192, June 7, 1924, c. 355, 2, 43 Stat. 659 (45 USCA 23).

Footnote 4 The railroads state that the Commission's orders disclose that 'a considerable number' of the changes were brought about as a result of conferences between the chief inspector and committees representing all the railroads, or upon requests of representatives of the carriers, which modifications were agreed to by the representatives of the employees interested and by the chief inspector.

Footnote 5 Compare United States v. Atlanta, B. & C.R. Co., , 527- 529, 51 S.Ct. 237.

Footnote 6 The closing paragraphs of the report are:'On the record in this case we conclude and find that the safety of employees and travellers on railroads requires that all steam locomotives built on or after April 1, 1933, be equipped with a suitable type of power- operated reverse gear.'We further find that all steam locomotives used in road service built prior to April 1, 1933, which weigh on driving wheels 150,000 pounds or more, and all steam locomotives used in switching service built prior to April 1, 1933, which weigh on driving wheels 130,000 pounds or more, shall have such power-operated reverse gear applied the first time they are given repairs defined by the United States Railroad Administration as class 3 or heavier; and that all such locomotives shall be so equipped before January 1, 1937.'We further find that air-operated power reverse gear should have a suitable steam connection so arranged and maintained that it can quickly be used in case of air failure.'An appropriate order amending our rules for the inspection and testing of steam locomotives and tenders and thier appurtenances to give effect to these findings will be entered.'

Footnote 7 The objection presented here is similar to that urged upon the Court in United States v. Louisiana, 290 U.S. 70, 80, 54 S.Ct. 28, 33. There, however, the Court was satisfied that the essential findings had been made, although 'the particular form in which they were cast here (was) not to be commended.' Compare Georgia Public Service Comm. v. United States, 283 U.S. 765, 773, 51 S.Ct. 619; Alabama v. United States, 283 U.S. 776, 779, 51 S.Ct. 623; Louisiana Public Service Comm. v. Texas & N.O.R.R., 284 U.S. 125, 132, 52 S.Ct. 74; Illinois Commerce Comm. v. United States, , 481-483, 54 S.Ct. 783; Ohio v. United States, 292 U.S. 498, 511, 54 S.Ct. 792; State of Montana v. United States ( D.C.) 2 F.Supp. 448, affirmed 290 U.S. 593, 54 S.Ct. 125; Commonwealth of Kentucky v. United States (D.C.) 3 F.Supp. 778. See, too, New York v. United States, 257 U.S. 591, 600, 42 S.Ct. 239.

Footnote 8 The original Act of February 4, 1887, c. 104, 14, 24 Stat. 384, which had prescribed that the report should 'include the findings of fact upon which the conclusions of the Commission are based,' was amended by section 3 of the Act of June 29, 1906, c. 3591, 34 Stat. 589 (49 USCA 14 ), so as to require (except in reparation cases) that it shall make a report 'which shall state the conclusions of the commission, together with its decision, order, or requirement in the premises.'

Footnote 9 A different rule has been applied to executive action not subject to review. Compare Philadelphia & Trenton R.R. v. Stimpson, 14 Pet. 448, 458; United States v. Chemical Foundation, 272 U.S. 1, 14, 15 S., 47 S.Ct. 1.