
    Brotherhood of Railroad Trainmen v. Illinois Central Railroad Company
    No. 42217
    March 26, 1962
    138 So. 2d 908
    
      
      Ramsey, Ramsey & Bodron, Vicksburg, for appellant.
    
      Wise, Smith & Carter, Jackson; J. H. Wright, John W. Freels, John W. Foster, Chicago, Illinois, for appellee.
   Gillespie, J.

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 Pull 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 Pull 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.”

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 Pull 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.

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 snch train mentioned in this section consists of three cars, an additional porter, brakeman, baggageman, or competent flagman shall be furnished, and on snch 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.” tration Cir. C-108, 42 pp., 1939. Plaintiff complains that defendant waited so long to retire these revolving-fnnd obligations. The reason for this is explained by Hnlbert (‘Legal Phases of Cooperative Associations’, p. 276) as follows: ‘ The derivation of the name revolving-fund plan becomes more apparent when an association reaches the stage where the oldest investment of the patrons of previous years may be retired. It is only when an association reaches this stage that its revolving-fund begins to revolve. Accumulations or retains for capital purposes, under this plan of financing, should be at least recorded on the books of the association as credits in favor of the proper persons. (This is what the Defendant did.) The revolving-fund plan of financing is believed to be the most practicable way of insuring that ultimately all the major contributions of patrons to the assets of an association may be returned to them. The fairness of the plan should make it easier for an association to obtain members and to build up an adequate capital. It provides a means by which the capital of an association increases as its volume of business increases. Many of the most successful agricultural cooperatives use this method of financing. It is being adopted not only by new associations but by associations which have been operating for many years.’ The validity of the revolving-fund plan of financing" has been specifically recognized by the Courts. Reinert v. California Almond Growers Exchange, 9 Cal. 2d 181, 70 P. 2d 190; Adams v. Sanford Growers’ Credit Corporation, 135 Fla. 513, 186 So. 239; Ozona Citrus Growers Association v. McLean, 122 Fla. 188, 165 So. 625; Proodian v. Plymouth Citrus Growers Association, 143 Fla. 788, 197 So. 540; Parker v. Dairymen’s League Cooperative Association, Inc., 222 App. Div. 341, 226 N. Y. S. 226; Loomis Fruit Growers’ Association v. California Fruit Exchange, 128 Cal. App. 265, 16 P. 2d 1040.”

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. 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.

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.  