*1 COMPANY, THE A PENNSYLVANIA RAILROAD CORPORA TION, APPELLANT, v. OF UTILI DEPARTMENT PUBLIC TIES, COMMISSIONERS, BOARD OF PUBLIC UTILITY JERSEY, NEW STATE OF RESPONDENT. OF
BROTHERHOOD FIREMEN ENGINE LOCOMOTIVE AND MEN, TRAINMEN, BROTHERHOOD OF RAILROAD ORDER OF RAILWAY CONDUCTORS AND BROTHER ENGINEERS, HOOD OF AP LOCOMOTIVE ADDITIONAL PELLANTS.
Argued February 1, December 1953 Decided 1954. *5 J.
Mr. Lamb the cause for the Raymond argued appellant Lamb, & Mr. A. Emory, Langan attorneys; S. (Messrs. bar, counsel; Schroeder of Messrs. Lyon, W. Hutchinson Samuel on the Charles brief). Mr. John E. Toolan the cause for the argued additional Toolan, Romond, & appellants Haney (Messrs. attorneys). *6 Mr. John Sailer, R. the Deputy Attorney-General, argued cause the Parsons, for Attorney- Theodore D. respondent (Mr.
General, Sommer, and Mr. Frank H. attornej's).
The opinion the court was delivered by an This is from an of the appeal order Board Jacobs, J.
of Public Utility 28, 1953; Commissioners dated April has been certified to this court to R. R. 1:10. pursuant See 13 N. 430 J. (1953).
On the 6, 1951 a evening February there was disastrous wreck on the Perth Amboy branch of the Woodbridge Pennsylvania Railroad. lives were lost and Eighty-four approximately were persons injured. Thereafter investi- were gations made the by Board of Public Utility Commis- sioners and the Attorney-General. its During investigation the board conducted which many were hearings, participated the representatives Pennsylvania, and due course issued its Findings, Recommendations and Order (Docket 5473). No. On 19, 1951 the April Attorney-General issued his These indicated the Report. train derailed as it moved onto runaround track near the temporary located station and Woodbridge put in use for the first time on 6th. The track February was considered safe for a restricted speed and the Pennsylvania had issued its General Order No. 1806 which provided “Trains and must not engines speed exceed a of 25 miles per hour” the loca- designated at tion. been this order had on the Penn- Apparently posted bulletin sylvania’s boards in with its accordance operating rules and had been the copies furnished to train’s engine- man, However, fireman and conductor. there were no addi- tional objective to insure awareness precautions designed and observance of the speed restriction. automatic block were not used to indicate the restricted speed no signals slow boards or markers were appropriate speed placed along In the board’s “Entire trackage. dependence language: with for restriction and complying speed operating reduced over runaround trains at at speed Woodbridge in the Order and on the was General retentiveness of placed In its specific findings of the memory engineman.” to reduce had failed the engineman board stated that hour when approaching 25 miles an the train to speed of exces- track; was caused that the accident runaround uni- a lack train; there was and that sive speed relating signals in the rules and practices railroad formity its areas. In restricted indicating speed or slow boards and order the board suggested recommendations the distribution over closer supervision exercise (1) orders and consideration give generally of general tempo- to indicate signals markers and automatic block use of re- restrictions, speed the use of permanent (2) rary speed of an automatic installation (3) striction signs, *7 Attorney-General’s The control speed system. train and and suggested with recommendations also concluded Report and study to proposed signals of a commission the creation train of for examination restrictions, requirements speed and construction, equip- maintenance personnel, operation, matters. ment and related 13, date 1951 the letters July
Under of board addressed to the and the Pennsylvania other railroads in operating New which called the Jersey a conference for of purpose the ascertaining of examinations (1) adequacy physical trainmen; of and of enginemen (2) obtaining methods orders, closer of distribution and supervision of general methods of uniformity about in railroad (3) bringing greater those to the use of practices, particularly relating cautionary and slow was markers boards. conference signals, railroads, held and ultimately Pennsyl- including vania, to the minimum agreed following practices: (1) physi- train and service engine cal examinations of road employees in years; less than two train and every (2) employees road sick to re-examined if off service reporting engine for more than 30 and conductors to days; (3) engineers orders; for and of and receipt carry copies general (4) to for a at a practice provide slow order temporary signal restriction, in of the of a point distance advance proper a restriction, at the of third point second signal signal con- the end A letter territory. of the restricted indicating this railroads’ firming repre- was sent agreement 12, sentative board under date September and a sent 15, further 1951 was letter dated September directly by the Pennsylvania to the board.
Not satisfied with the extent being measures being undertaken voluntarily other railroads, the board on November 7, 1951 issued orders to show cause similar form and addressed individually each of them. The order to the No. Pennsylvania (Docket 5847) directed before the board on appear December 1951 and show cause it should not be to: why required as (1) establish minimum practice, examination of physical in road at enginemen service intervals three months of firemen road months; service at intervals six a rule (2) adopt conductors, trainmen, requiring enginemen service, firemen in road after an upon resuming duties more, absence of 15 or days be examined with respect their knowledge which have changes occurred operating rules, instructions, orders, time table their general during absence; adopt rule (3) firemen requiring enginemen road service duties upon after an absence of three resuming months to be examined as to their of the knowledge physical characteristics road over which will operate; (4) adopt practice the automatic block controlling restrictions; to indicate signals speed temporary adopt (5) *8 the of practice markers or of signs advance installing restrictions; track by permanent affected a speed adopt (6) rule road employees verify to that requiring supervisory service and conductors are in possession of enginemen orders, have read the subject motive general (7) power and other stock to more and intensive rolling comprehensive The was held on December inspection. hearing and was continued on 13 and 19. No witnesses December were called but five the by witnesses called by were examined. included chief duly They its examiner, superintendent medical of general transportation, of superintendent telegraph, general superintendent general mechanical assistant of motor the eastern of power region Fire- In of Locomotive addition Brotherhood engineer. its one testimony by men and introduced Enginemen the Board a of the staff representatives and member of Public Commissioners. Utility
The with chief medical examiner testified respect pro- to the posal examination (1) relating physical engine- men are subject and firemen. All to pre-enqdoy- employees arc examination; ment in the service employees engine examined two of 40 and every years every before age thereafter; before year firemen are examined promotion than 30 and, if for more enginemen days, undergo furloughed further to duty. examination to return permitted before being In there why to an as to was more response inquiry frequent “It forty 40 he is at the examination after said: age in, we when processes set degenerative begin lookout, at think we should be on at least then on in individual.” intervals, to see what is yearly going He industries now periodic many require acknowledged ho know medical examinations of but stated that employees were at three intervals. of none where month required The he had heard of was six-months’ peri- most stringent He the view of airplane pilots. expressed odic examination there no need for more examinations frequent was and firemen than those presently being given engineers He did as to on other testify practices Pennsylvania. railroads; fact, their examinations of periodic enginemen railroad examines its and firemen One vary considerably. and most of the others and firemen annually enginemen and firemen or biannually, examine annually enginemen examinations biannually, frequent classes with more both older employees. superintendent transportation respect testified with to examination on proposal relating (2) changes general absence, after 15 days’ orders proposal (3) relating examination on three physical characteristics road after He months’ absence. the view expressed that neither pro- would add to the increase safety efficiency of posal
421 railroad’s operations. Pennsylvania’s place to practice orders on bulletin con- general boards which enginemen ductors are work. required to examine when to reporting Enginemen instruct their firemen and instruct conductors their work trainmen the orders. Men report for regarding at rail- various of each the three divisions of points road and there would and incon- expense be considerable if, venience after for 15 because vaca- absent being days otherwise, tion or were to be examined on they required orders before of the rules examiners general one qualified employed the railroad. Pennsylvania’s Under practice a man must familiarize himself with physical charac- teristics road he as before qualifies engineman he make over the territory must a keep qualified trip once a The year. testimony superintendent’s recognized need for examination ex- on after physical .characteristics tended re- absence but asserted Pennsylvania’s present sufficient; he did “think a less quirements were period than a as to year necessary.” would be He did not testify fact, other In railroad practices of railroads. one requires conductors, enginemen absent for 15 days more, or submit their for rules binders examination to insure effect; contain all then in general orders and several others and conductors in require engineers service, road absent for 30 or to be days more, examined aby trainmaster or road with foreman to their respect knowledge changes rules. one Similarly, railroad operating requires engi- service, neers road absent passenger more, days to make a run under the qualifying supervision of a road foreman; another run after requires an absence qualifying and several others it after days require an absence six months. superintendent general transportation testified with to the use of respect (4) relating proposal automatic to indicate temporary block signals speed restrictions and to the installation of markers proposal (5) relating or signs indicate restrictions. The speed permanent automatic block does not manipulate signals control speed *10 422 markers;
and does maintain restriction not speed permanent its witness the view that its are expressed present practices mile and need not altered. of adequate Practically every form Pennsylvania’s with some of block system equipped The of the railroad are lighter trafficked signal. portions covered the trafficked densely manual more by signals, block are covered and on the portions by signals, automatic block are most trafficked automatic block densely portions signals The block supplemented signals cab automatic signals. have been used the of track convey occupancy information on that their advance of the train and the witness suggested manual restrictions indicate manipulation temporary speed the in the minds of would impair system integrity of the testi- Brotherhood enginemen. representative fied in view. of this support speed markers or indicating permanent
Although signs are used to (o) as contemplated by proposal restrictions railroads, does certain extent other he its prac- witness testified that considered them and its use it, “I feel we quite safe.” As he can put to be “quite tice for his of the on the engineman knowledge safely depend of all of the speed and his knowledge characteristics physical referred to the difficulties attempting He restrictions.” since, restrictions” speed “permanent to define the expression restrictions in force on the are different there oftentimes time. The Brotherhood’s representa- at the same same track contrib- that “would not (5) the view proposal tive expressed from detract safety operation”; could possibly ute to the railroads use markers that some acknowledged he restrictions but he doubted speed permanent designating engineman’s knowledge He cautioned value. their his run characteristics of the physical timetable his like “he knows road since underestimated not be should in a and takes pride of his hand great palm he knows the contents timetable.” with familiarity thorough its accident record was testified witness Pennsylvania’s had “in the past there been a recession although improving he to an stated that inquiry In response months.” eighteen lie had no as how the methods of suggestions railroad’s operation could be reduce improved accidents. Proposals were the (6) of additional subject (7) testimony which discussed; need not be dismissed these proposals are not matter they subject Pennsylvania’s appeal. On issued its April the board decision and order reviewed the in detail its which and embodied testimony conclusions directions. were never for- Although made record the board stated it had mally part taken official notice of the Attorney-General’s Report, *11 and in Docket No. Findings, board’s Recommendations Order and the railroads in the of other practices operating New it Jersey. State of With to con- respect proposal (1) three and six cluded that examinations of months for engine- firemen not at time men and would respectively present reasonable, that it as be but would be reasonable to require minimum examination of practice physical enginemen and in road service at least once a and more year, firemen at the discretion the medical examiner of the rail- often abnormality road when is found in an em- any significant I of its order embodies a to ployee. Paragraph provision With to it respect (3) rejected that effect. proposal after 15 would days’ that examination absence testimony an unreasonable burden and concluded that require- constitute in the public “would be interest by insuring ment therefor at all have the full and conductors times that enginemen of rules and necessary and orders understanding knowledge them” and “neces- upon responsibility imposed to meet the in the of the safety operation sary promote greater to II of its order embodies a require- Paragraph railroad.” found Similarly, examination. board ment for such firemen the examination enginemen a for requirement the road after an absence of characteristics of on physical in the public more “would be interest by three months at all the full times have that such employees insuring with familiarity physical aspects of and knowledge to meet the necessary responsi- the railroad characteristics “necessary them” and promote greater upon imposed bility in the III safety operation of railroad.” Paragraph its order embodies a for such examination. requirement
With stated that its respect proposal study (4) of the and its of the of other testimony knowledge practices railroads did not the views with permit agree expressed on Pennsylvania’s but, behalf on the lent contrary, support to the view that failure to utilize automatic block signals aid in obtaining compliance temporary speed with restric- tions “is tantamount to a failure to take advantage of full for potentialities safety of automatic block signals, generally as the most effective means devised recognized yet the movement of trains.” safeguarding controlling It considered invalid the that manual suggestion manipula- tion of the automatic block would signals impair integrity system concluded that “a to utilize requirement automatic block to control movement of a train signals a of track affected approaching segment temporary restriction would and would an speed promote safety orders, effective to train orders and supplement general “slow boards’ such restrictions.” speed covering Paragraph IY of its order embodies such requirement.
With the board stated that respect proposal (5) did not difficulties to be insurmountable suggested appear markers or permanent re- signs indicating speed *12 installed, strictions would be of value “and should be except within limits of on all and double interlocking plants, single line wherever and track and feasible on sections practicable three or more tracks.” Y of railroad having Paragraph of the board’s order embodies such requirement. Proposals were dismissed but the board embodied in and (6) (7) para- YI, order, its YII and YIII of directions that graphs and adhere to the several Pennsylvania adopt requirements had and the upon by Pennsylvania which been agreed railroads after informal conference. The appeal by other is from all of the and directions require- The board’s order. show cause ments embodied pro- the other railroads resulted in similar orders ceedings against matter of the in a subject appeal are the companion which
425 case. See The Lehigh Hudson River Railway Company, et als. v. Department Utilities, Public 14 N. 440 J. (1954). There is no doubt that our has Legislature ample constitutional power impose reasonable safety requirements on railroads in New operating Jersey, there is no provided substantial interference with interstate commerce or intrusion onto a field which has Congress occupied completely. See Lakewood Express Service v. Board Public Com’rs., Utility 1 N. 45, J. 49 (1948); v. 313 Thompson, U. S. California 109, 113, 61 S. 85 Ct. L. Ed. 1221 930, 1219, (1941); Southern Co. v. Arizona, State 325 761, 767, U. S. Pacific 65 1515, S. Ct. 89 L. 1915, Ed. 1923 v. (1945); Napier Atlantic Coast Line R. Co., 605, 272 47 207, U. S. Ct. 71 S.
L. Ed. 432 Statutes, (1926). utility act Title (Revised contains 48) such many and after the provisions, Wood- wreck it was bridge supplemented aby specific requirement for the installation of boards cautionary runaround indicating or temporary 1952, 213; tracks. L. c. N. :12- J. S. A. 48 40.1. However, the exigencies direct government preclude and detailed legislative supervision of daily operations of the railroads within the and it has State been rightly to the Board of Public delegated Utility Commissioners with statutory broad to be powers exercised accordance with standards. West & general Jersey Seashore Railroad Com v. Board Public pany Utility Commissioners, 87 L. N. J. & A. 1915); Scott, Ward 11 N. (E. v. J. Thus, R. S. 48:2-23
(1952). provides the board may, after notice and any to furnish hearing, require public utility safe, service; adequate R. S. 48:2-25 proper pro after vides that fix may, just hearing, reasonable classifications, standards, to be regulations practices 48:2-13; followed R. by any public utility. See also S. 48:3-3. We find merit to the
R. S. no appellants’ point be restricted R. 48:2-25 should to the regulation S. public in the sale of utilities water engaged electricity, gas, which are measured by other substances meters. Nothing terms or apparent its so limits it and we express purposes its comprehensive are should be persuaded language *13 426 its statutory The cited ordinary provisions
given meaning. are to wholly jurisdiction the board’s adequate support to be order which are found railroads adopt practices transporta- to afford safe justly reasonably necessary tion to the public. in such safety prac
The board’s function prescribing is nature tices in (or gwasi-legislative). legislative Cf. v. 14 N. J. 319 Prentis Armstrong, (1954); Abbotts Dairies 210, 67, 29 Co,, 226, 211 S. Ct. v. Atlantic Coast Line S.U. 150, L. Ed. 158 requirements 53 (1908). pertinent than are rather constitutional. statutory advance notice hearing Co., v. Milk Milk Control Newark Sta te Board of 504, & States Box 1935); 118 N. J. 522 A. (E. Eq. Pacific White, 176, 159, Ct. 80 296 U. 56 S. & Basket Co. v. S. Keenan, v. 12 Theatre Co. L. Ed. 138 Adams (1935). Cf. 267, strong 278 there is a Fortunately legis N. J. (1953). as S. prescribed in favor R. hearing, lative trend of prior may the function 48:2-25, and R. even where 48:2-23 S. judicial rather than considered legislative be properly with Armstrong, supra, Dairies v. nature. Abbotts Compare Co., Newark Milk supra. Milk Control v. Board State New Administrative Agency on the State Report See with need not hearing strictly Such conform Jersey (1938). See Abbotts rules evidence procedure. law common Prod Norwegian Nitrogen Armstrong, v. supra. Dairies Cf. 350, 294, 53 S. Ct. States, 288 S. v. U. ucts Co. United Although appellants urge Ed. (1933). 77 L. nature judicial (or gtiasi-judicial), is statutory hearing Central Nome See unimportant. designation precise its J. Div. (App. 5 N. Gough, Super. Co. v. Trust Davis, Law, 255 Whatever Administrative (1951). 1949); which be formality is not a disregarded label it its be device prescribed protective is a substantial but interested fair parties opportunity afford Legislature or material as the such evidence and refute heard See its action. Abbotts support upon may rely Water In re Armstrong, supra; v. Dairies Plainfield-Union N. J. 296 (1954). Id. 14 382 (1953), 11 N. J. Co., *14 427 In the course of the the board must be hearing given full latitude to avail itself of the wealth of informa general tion and expert which it obtains the perform knowledge ance of its administrative Eliza day-to-day activities. Cf. beth v. 496, Board 99 L. Com’rs., Public N. J. Utility of
497 & Co., A. In 6 N. (E. 1924); re Port J. Murray Dairy 285, 296 Super. 1950). Div. (App. By appropriate taking notice, official record, and making part hearing fair affording refutation, of board opportunity adequately protect both the interests public private concerned. See Krauss & v. A. M. 13 N. J. Karagheusian, Davis, 461 447, 62 L. (1953); Notice, Harv. Rev. Official 537 official (1949). Similarly, reports transcripts other before the board made may readily be proceedings v. Abilene & part United States Southern hearing. Cf. 274, 565, 265 44 68 L.
Railway Company, U. S. S. Ct. Ed. 1016 In this fashion the (1924). within may stay the record and rest thereon its ade order accompanied by which determine the facts and the quate findings basic therefrom. In conclusions recent this court has been years called out that such are of upon frequently point findings the utmost a importance only insuring responsible determination the board but also in a just according basis for review which is judicial proper expressly 48:2-43; statute and rules. R. R. afforded R. S. 4:88-8. Utilities, R. Co. N. J. v. Dep’t. See Central Public 7 247, J. 261 Id. 10 N. J. 255 N. (1951), (1952). Cf. Dairies, Inc. v. Finance Armstrong, supra; Abbotts Household 11 576 Gaffney, Co v. N. J. Delaware L. rp. (1953); Koboken, 10 N. J. 418 City & W. R. Co. v. New (1952); Workers, Bell Co. v. Communications Telephone etc., Jersey R. R. Co. v. N. 5 N. J. 354 J. State (1950); Comm., Davis, 2 N. J. 64 (1949); Aviation Administrative 521, Law, 526 (1951). are now principles foregoing generally under-
Although are not to be accepted, applied particular stood where sense and good proceedings justice administrative See Market Street R. Co. v. otherwise. Railroad dictate 428 Cal., 548, 770,
Comm. 324 U. 65 89 L. 1171 S. S. Ct. Ed. Lines, v. Pierce Auto (1945); United States Freight 687, U. 66 Ct. 90 L. S. S. Ed. 18 A. L. R. (1946); 2d 579 In the declined, Market Street case court (1951). in the an order absence of showing prejudice, upset aof state commission the commission went utility though the strict record in beyond certain predictive making findings. And in the Pierce Auto case the court Freight declined, *15 the absence of a of an showing prejudice, order upset the Interstate of Commerce Commission it had con though in related sidered the evidence In the course proceedings. court, his for the Justice said opinion Rutledge aptly S., 529, Ct., 689, 66 Ed., at at 90 page page U. S. L. (327 : 832) at page ordinarily agency “It true that an is administrative will act appropriately, proceeding sort, upon presented in a of this the record properly through and such matters as receive its attention Court, appropriate It true ‘official notice.’ is also that this in in stances, implement has limited the use of the in order to assure latter parties deprived hearing. that the will not be a fair See United Co., 274, 286-290, 565, States v. Abilene & S. R. 568-570, 265 U. S. 44 Ct. S. 1016, ; L. [1021-1024] 68 Ed. Interstate Commerce Com mission, Co., 185, 88, 93, 94, v. & N. R. Louisville 33 S. Ct. 227 U. S. 188, 187, doing [434]. L. Ed. 431 But 57 so it has not sticking squarely undertaken to make a fetish of within the four specific proceedings corners of pinning the record administrative or of agencies, determinations, down such with reference to fact rigidly strictly judicial proceedings. even more than the courts in contrary, other, On the in the one case as in the the mere fact determining body beyond proper that the has looked the record does prejudice invalidate its action unless substantial is shown to Commission, result. Market Street R. Co. v. Railroad 324 U. S. 548, 561, 562, 770, 777, 1171, 1181, 1182]; 65 S. Ct. [89 778 L. Ed. Opp Wage Division], Cotton. v. [of Mills Administrator & Hour cf. 126, 154, 657, 524, 536, 537, 312 U. S. 61 S. Ct. 85 L. Ed. [640, necessary apply 641]. In these cases no more than to rule.” attacks the Pennsylvania board’s action taking
official notice of the Attorney-General’s the Report, Findings, 5473., Recommendations and Order in Docket No. and the of other railroads as evidenced practices during pro on ceedings independent though contemporaneous show cause orders issued to them. We due time agree the course during the board should have hearing advised the formally these Pennsylvania matters were being officially noticed and made record. part hearing However, we fail to see how the inwas anywise prejudiced omission. It was aware of the cir- fully cumstances wreck, surrounding Woodbridge ensuing investigations, reports conferences which culminated in the show cause orders, and the thereon proceedings including the evidence to the railroads relating practices bearing on each of the under specific subjects consideration. In the course were references made to the Wood- hearing, wreck and the bridge in- resulting investigations, specific was made as whether quiry there were any suggestions for measure of and full attaining higher safety, opportunity was for the introduction of oral and docu- given testimony mentary evidence. At the close of there were hearing no motions addressed to the manner in which it had been conducted, at one counsel although point Pennsylvania’s sug- that he would like to make a he gested motion which later waived. After the board’s decision was rendered there was it, no attack before which was by petition rehearing *16 available, admittedly on of the evidence accuracy upon which it relied. It is if the related suggested pro- had been made formally of record ceedings part hearing introduced; further would have is testimony been and there no court as to the material facts which have dispute this been outlined earlier in this and which the opinion upon validity of board’s order will be tested. the par- Under ticular it would neither realistic circumstances be nor just the entire before the on the nar- board upset proceeding row that it took of the official notice other ground improperly had, in related in which the con- proceedings Pennsylvania measure, siderable v. Pierce United States participated. Cf. Lines, Freight
Auto : supra any showing specific prejudice, “In the absence of the claim highly objection Commission, comes down to -the technical stage forming judgment, final in the its could not in either case notwithstanding other, take account of what had been done objects closely applications and the related character of the prior proceedings. amounts The contention farthest reach its legal injunction against letting scriptural to a version one’s of the right doing. hand know what one’s left hand be Obviously good nor, it would be consistent neither with sense we think, type hearing with the assured the statute to force the put complete Commission to on such blinders.” The Pennsylvania contends that none of the require ments imposed board finds support the evidence and that its consequently entire order should be vacated. The provisions in the board’s order will be considered seri aium. I Paragraph requires physical examination of enginemen firemen in road service at least once a year. On its face it appears wholly reasonable and in accord with recommendations medical made with profession respect much occupations lesser hazard and involving responsi bility for the of others. safety Industrial Medi Wampler, cine, Shillito, Examinations, 145 (1943); Periodic Health 39 Annals Medicine, Internal We 1953). gather (July that Pennsylvania’s to the moderate extension of objection its annual present primarily examinations not grounded on increased but on its expense position inconvenience that the was not shown to in the interests change necessary be of safety and should remain a matter of management’s judg ment rather than board directive. We consider tills position untenable. The has a high continuing pub lic insure that railroads safe trans responsibility provide not, It need portation. course, await the of an happening accident it an before acts to additional measure compel safety which, burdens, after due evaluation benefits' and of its finds reasonably necessary protection public. annual value of examinations for physical enginemen firemen in road service is self-evident hardly requires any affirmative there was no special proof; showing deemed burdens thereof on could be consider *17 able. We find that action was justified by board’s record and was well within its statutory authority. trainmen, conductors, II that requires
Paragraph service, days for in road absent and firemen enginemen any their more, knowledge examined to ascertain or be value of The orders. rules or changes operating general are personnel road service some to insure that steps taking self-evident aware of and understand rules changes But the no affirmative special proof. requires are and that that its sufficient practices contends present rules examiners by qualified employed examination specially The as such undue and inconvenience. expense would cause find no occasion for board’s judgment disturbing but should be Pennsylvania’s present practices improved need the examination have not been shown for any having rules examiner aby specially qualified employed conducted indicated, has several railroads now follow as such. As been and conductors road practice having enginemen foreman as a trainmaster or road service examined by of any changes oper their knowledge understanding which have occurred during rules and orders ating general may and conductors their absence. Similarly, enginemen make certain that the firemen and trainmen readily super vised them are familiar with and understand the changes.
It to us that the appears objectives of II proper paragraph be without accomplished, unnecessary incon entailing venience and it to expense, by modifying provide engine- men, conductors, service, firemen and trainmen in road more, absent for 15 be examined days by competent super the railroad visory with personnel designated respect their understanding any knowledge changes oper rules or orders which have occurred general ating during their absence. III and firemen requires enginemen
Paragraph service, more, for three months or exam in road absent be characteristics of the division over which ined on physical The need that some precautionary will operate. steps covered the taken where has not engineman territory of time seems beyond a considerable period dispute. have fixed the six well at rather than period board might *18 exercise of disturb its months, three we shall not although shown has been However, in this no need judgment regard. qualified for conducted by specially the examination having such; we persuaded as nor are rules examiners employed III to that the the requirement paragraph application As safety. in the interests of firemen is reasonably necessary fireman Pennsylvania the to us at oral represented argument, and does under supervision is always engineman’s if, halt an immediate it to the train to operate except bring to con- is unable because of an engineman emergency, limited thus severely is tinue. The fireman’s responsibility not traveled which he has his first run over territory under another’s guidance. of time is necessarily any period III that we believe paragraph before us Upon showing coverage from its firemen should be modified to exclude by competent conducted examination to be permit the railroad. by supervisory personnel designated “adhere IY Paragraph requires Pennsylvania block on the approach automatic practice controlling signals re- affected by temporary speed to or advance of track can dis- strictions so that the best indication possibly when the restriction is is play ‘Approach’ equivalent and when the restriction is imposed medium or less speed track, tem- temporary support because of resort to use of con- comparable of track or other porary change alignment a “Clear ordinary signal ditions.” Under the automatic block immediately beyond means that the block Seat” signal next is clear. beyond is clear and that the block signal the next it means that When the “Approach” signal appears Proceed” in turn means that “Stop signal the track has been shunted either a train or a signal rail an set broken or switch. The improperly “Stop means that the train must at Proceed” come to a halt signal and then at no more than 15 miles proceed signal per hour, ahead, the alert for the train on engineman being rail set broken switch. improperly
The and most other railroads do not manipu- and the in the speed late block to control signals testimony the effect that such action might record was strongly safety. rather than advance the interests of well impair were its General Superin- views voiced Pennsylvania’s have been whose two-fold objections tendent of Telegraph as summarized follows: *19 engineman signal “(1) there knows that the is set because If the may ‘Approach’ speed improperly a he assume that the is restriction signal passes signal he involved with the next so that when is speed long, may order, increase his over the slow if the block is he high speed. approach signal If does at a rate of he and the too signal the next involved with so on the occasion that the fact ‘Approach’ signal ‘Stop signal a Proceed’ he is not and shows going stop a train in to avoid a collision or be able to his time signal derailment; integrity (2) the The railroad considers Pennsyl- system paramount importance. It has taken itself to be of up generations
vania absolute confidence of two three to build engineers system signal the faith will be lost their and this manipulation signals give false indications.” testified that the practice Brotherhood’s representative indi- manual of automatic block manipulation signals and that cate restrictions was with disaster” speed “pregnant “far from it “would safety” positively endanger promoting the rail- it.” In the other companion proceeding involving the was that the was testimony practice roads overwhelming Uo flatly rejected. with and should be fraught danger a view was intro- contrary affirmative testimony supporting the behalf in either duced on board’s proceeding.
On the aforementioned limited we are showing unable to find that the IV was requirement paragraph in the It would reasonably necessary safety. interests without in may, anywise seem that impairing achieve its of the automatic block signals, largely integrity markers, the maintenance of suitable objectives requiring day, observable to clearly engineman night restrictions. To indicating temporary speed adequately extent, 213, the slow c. order considerable L. achieve which the railroads voluntarily agreed upon,
practice in that result; further direction which steps may this any after be hoard may compelled by be reasonably required under R. 48:2-23 and R. S. S. appropriate proceedings 48:2-25. In the meantime IY provisions paragraph must be set aside. In this we action do not taking suggest the board an not in a later may upon proceeding affirmative some necessity, prescribe reasonable showing use of the automatic in aid of system temporary block signal restrictions. We are not there is merit speed convinced that to the contention that has Pennsylvania’s occupied Congress the field of exclusion of automatic block total signals state There any safety thereon. requirements bearing be local which are suitable to temporary problems wholly local with safety which regulations may readily imposed out effectiveness of automatic block impairing signal interstate We system or commerce. substantially burdening A. C. U. S. find in the federal act nothing pertinent (49 or the thereunder which 26(b)) may properly regulations intent exclude state be said to evidence Congressional action under limited circumstances. such install Y “to requires
Paragraph at affected markers or or on to track signs approaches *20 double-track restrictions on by permanent speed single railroad, of the within the limits of interlock except sections sec and, wherever feasible and on plants practicable, ing tracks, three in addition tions of railroad or more having in the to and such restrictions operating covering listing We it affirmative time-tables.” consider evident without that where a permanent speed restriction marker proof will serve as a material aid to the of the memory engineman will not in turn produce and adverse it consequences, which an appropriate safeguard considered by to be in the reasonably necessary interests of safety. railroad uses At least one now such markers very extensively them and others use wherever practicable and feasible. As indicated, has hereinbefore been Pennsylvania’s witness because oftentimes there are several objected different speed in force on the same restrictions track at the time; same tracks are used for in two-way operations which the speed the current of traffic is less than it is with against the cur- rent traffic; speed different different restrictions to apply trains; types turnouts, and there are on restrictions spring switches and He testified interlocking switches.
the Pennsylvania does not use restriction permanent speed markers; their confusion; installation would lead and full reliance may be on the placed engineman’s knowledge of physical characteristics and have restriction. We speed no in hesitancy the view sustaining board’s rejection that complete reliance may be on placed engineman’s memory. But we are not satisfied that it has satisfactorily met the practical difficulties advanced by Pennsylvania.
The board may readily require install, Pennsylvania to where practicable feasible, restriction permanent speed markers which are visible to by day enginemen night; if the board considers it further necessary go imposing a mandatory requirement it should reframe with due for difficulties regard specific advanced Pennsylvania. Y is remanded
Paragraph for further accordingly hearing and disposition. VI, VII VIII the items
Paragraphs embody which were voluntarily agreed upon
advance of the board’s order to show cause. seem to They be reasonable and well designed to the interests of advance Thus, VI safety. that train and paragraph provides engine road service employees when off for than 30 duty days more because of sickness or shall be injuries subjected physical work; before re-examination VII resuming paragraph pro vides conductors road service shall be enginemen with them on carry when required duty copies general orders effect train their operation, relating signature of such orders to constitute their receipt certification of orders; VIII understanding paragraph provides markers, slow order temporary practice advance including *21 at markers of restriction and markers at termini of points Pennsylvania restrictions. has voluntarily complied all contends, the It it foregoing. however, with that had that the embody never notice any proposed agreement its into an order. The board was voluntary the rest upon declining well within its jurisdiction its it in embody voluntary seeking and undertaking entitled to fair notice Order. But was with rea 48:2-23; R. 48:2-25), S. S. hearing (R. reasons, if its vol any, why sonable show opportunity to a bind into untary should not agreement incorporated such No order for the public. ing proper protection and, to it notice, were afforded hearing opportunity will be remanded VI, VII and VIII accordingly, paragraphs for further proceedings. advanced contentions
We have considered legal merit; to be without find them appellants earlier determinations made of the observations and light men this ones but require passing opinion, primary evidence and finding It there was no tion. urged are “inade and services that Pennsylvania’s present practices there unsafe and and that consequently quate, improper” Where, as its order. in the board to enter was no power matters here, evidence, knowledge, of common including determi of the board support express findings and sustained imposed by nation that the provisions safety as minimum necessary and reasonably us are justly further there is no need for future, specific measures for the practices. of past present as to inadequacy finding evidence or finding there need affirmative Nor is for accidents; has heretofore caused of these measures omission accidents of such need not await the happening the board sub which upon proper findings act preventively but reasonably measures are the safety indicate stantially The find the public. the future protection necessary as they fairly form so long need take any particular ings the basic facts matter, in the instant disclose, as do its ultimate conclusions relies and which the board upon statutory pro the limits of the controlling within therefrom Davis, Law, 521 Administrative standards. See visions and (1951). contention, that it is being next
The Pennsylvania’s law, appears without due process its property deprived
437 to be entirely without foundation. It makes of the mention board’s reference to matters outside the strict con record, duct which has been discussed has adequately prejudiced no one. It asserts that it has been of its deprived right its own manage state property; presumably every regula tion of a public utility curbs management’s right operate it but, as pleases in view of the breadth acknowledged the police it is far too late power, to assert its invalidity where, here, as is found to be justly reasonably necessary for protection health, public safety Co., welfare. State Board Milk Control v. Newark Milk supra; Pennsylvania-Reading Seashore Lines v. Board of Public Commissioners, 13 N. Utility 540, J. 545 Super. Div. affirmed 8 N. J.
(App. 1951), 85 It (1951). also asserts that the order is and uncertain we ambiguous but find no present basis In re Port Murray supporting (cf. Co., 285, 6 J. 300
Dairy N. Div. Super. (App. 1950)) that, later warrant, out the event point circumstances be made to the board application readily for such clarifications, modifications as exceptions may be appro Railroad Commission v. priate. State Wisconsin Cf. Q. Co., 579, B. & R. Chicago 563, 232, 257 U. S. 42 S. Ct.
66 L. Ed. (1922). Finally, Pennsylvania contends that the order Clause of the Federal violates Commerce Constitution.
We are satisfied that it does not. The requirements of order, sustained, extent to the do not substantially impair free of commerce between states flow or intrude occupied completely by They field are any Congress. onto safety local measures which are simply reasonably designed our within Their traveling State. protect public appear accidents substantial advantages guarding against measured in the disadvantages, and their asserted terms of inconvenience, appear insubstantial. We con expense within decisions, fall well sider controlling Stone v. Thompson, supra, listed Justice California state many safety have sustained which regulations nature. comparable Utility
The order of Public Commissioners Board further remanded for proceed is modified and the cause is in accordance with this opinion. ings *23 exclude Heher, in I would not J. part). (dissenting the the III of board’s firemen from of coverage paragraph service, order, firemen in road that and directing enginemen to more, be examined as after an absence of three months or characteristics whether are on the “they qualified physical will of the road over which operate.” the within spe- This is a inquiry peculiarly legislative administrative cialized and experienced judgment within its essential and where the authority; keeps agency is the or unreasonable function, arbitrary and there not there is no an excess of jurisdiction, action constitutes It is of the essence of the doctrine revisory power. judicial the not substi- judiciary of separation powers that of the administrative its on for policy tute judgment 14 N. J. Water Company, In re agency. Plainfield-Union (1954). the “is this fireman question It is not decisive on and does under the not supervision always engineman’s an immediate halt to it to the train except bring operate an the unable to if, emergency, because of engineman is thus continue,” severely and the fireman’s responsibility run which he has not and his first over territory limited time is under an- necessarily any travelled for period I am aware of no reason related to other’s guidance.” this differentiation. The fireman for policy substance duties of crossing warning independent giving has his own out receiving signals, looking observing signals, on, and his duties and the engineman’s and so danger, the same. are largely this regard remand the cause for a not on hearing
And I would VI, matter of VII and the subject paragraphs as to notice measures safety voluntarily VIII, agreed embodying order in advance of board’s to show railroad to cause.
The railroad its concedes on brief that to the prior issu- ance cause, order to show the board “called an informal conference with the the railroads representatives all oper- in New ating Jersey held as discussions adequacy rules, existing safety regulations practices,” “As a result of the conference and discussions the railroads voluntarily adhere to certain agreed adopt practices and the board was so notified writing”; and that there- after board “issued its order show cause and recited therein the results of the informal conference and discus- sions and set forth said order the practices agreed to observed, be them as A designating D(c).”
In denial of due for want of a asserting process, hear- on notice “as to an order should ing why made adopt undertaken, thus directing practices” alia, railroad inter that no “as to urges, why said hearing should not be practices adopted, held,” was fact no evidence or con said “pro taken,” was no practices findings *24 “as of fact to the relation said to the safe practices oper- made,” ation of Railroad was ever and there is a “vast difference between a voluntarily certain agreeing adopt the Board practice having to direct pre-emptorily one certain and had the “carrier things,” do realized that was to order them to do whatever going to do there is voluntarily no doubt that agreed they would have acted How differently.” differently, end, to what made appear. are not this only rational course of interpretation pro- that,
cedure assimilated to in pretrial practice ordi- this conference was nary litigation, designed determine requirements. The security safety meas- unchallenged assumed were embodied voluntarily ures thus board’s render them enforceable rather than subject order to to the railroad, course with the will of rea- keeping only of the transaction. understanding Certainly, sonable was voluntary that this was undertaking understood deemed would render proof unnecessary take an obligation litigated matter out of the It could category. subject have been any There could not have any meaning. other during was no contra suggestion There purpose. other now is no contention and there proceedings; board’s sense or unreason- arbitrary are any requirements these denial of due here process there was a To able. hold the substance of right. the shadow ignore is to grasp result of the Otherwise, reasoning I concur Mr. Justice Jacobs. deliverance by Van Justice and remandment —Chief For modification Wachenfeld, Oliphant, Burling, and Justices derbilt, and Brennan —6. Jacobs
For modification—Justice Heher —1. COMPANY, RIVER RAILWAY AND HUDSON LEHIGH THE APPELLANTS, DEPARTMENT OF AL., v. PUBLIC ET UTILITIES, UTILITY PUBLIC COMMIS BOARD OF JERSEY, SIONERS, OF NEW RESPONDENT. STATE ENGINEMEN, OF LOCOMOTIVE FIREMEN BROTHERHOOD AND TRAINMEN, O F RAILROAD BROTHERHOOD ORDER OF RAILWAY CONDUCTORS AND BROTHERHOOD ENGINEERS, F O LOCOMOTIVE ADDITIONAL AP PELLANTS. Argued February 1, 1953 Decided 1954. November