
    Erie Rd. Co. et al., Appellants, v. Public Utilities Commission of Ohio, Appellee.
    (No. 29344
    Decided April 7, 1943.)
    
      
      Mr. J. P. Canny,.Messrs. Bushnell, Burgess & Fulton and Mr. William F. Steele, for appellants.
    
      Mr. Thomas J. Herbert, attorney general, and Mr. Kenneth L. Sater, for appellee.
   By the Court.

This, cause involves a determination of the extent to which Sections 12557-1 to 12557-3, General Code, apply to the movement of the so-called auxiliary tanks within the yards and especially that part of the railroad property that is known as the roundhouse area.

Section 12557-1, General Code, reads as follows:

“It shall be unlawful for any common carrier owning or operating an engine or locomotive used to switch cars, to operate such engine or locomotive handling cars in any railroad yard or on any railroad track within the limits of this state unless, each and every such engine or locomotive, while so handling or switching such cars, shall be manned with a full crew of competent employees, which crew shall consist of at least one engineer, one fireman, one conductor, and two helpers *

Section 12557-2, General Code, provides that a violation of the act by a common carrier shall be punished by a fine of $100 to $5,000.

Section 12557-3, General Code, provides that a superintendent, assistant superintendent, trainmaster, yardmaster, or other employee having authority who authorizes a violation or knowingly permits it shall upon conviction be fined not exceeding $300 or imprisoned not to exceed 18 months. It thus appears that these sections are criminal in nature and must be strictly construed.

It should be observed in passing that under Section 12556, General" Code, a “light engine without cars,” is not inhibited from proceeding under its own power up to any distance less than three miles with a crew of less than three men. As will hereinafter appear, no movement of three miles or more is involved herein.

Much testimony was taken upon the hearing and many exhibits were offered in evidence. It appears that in train movements between Hammond, Indiana, and Marion, Ohio, freight trains are able to operate without stopping for water by reason of the fact that immediately behind the ■ engine and ordinary tender, which carries coal and water, there is attached a so-called auxiliary tender. By the use of this additional facility at least thirty minutes is saved in running time between those points. The ordinary tender is more or less permanently attached to the locomotive but is detachable for repairs or other necessary purposes. The auxiliary tender, however, is' provided with an automatic coupler at each end, and, by means of them, is attached to the ordinary tender in front and to the car behind. It is not necessary to go into detail regarding the construction of this instrumentality for carrying the additional water. It suffices to say that it is constructed from an old tender of the ordinary' kind by .closing up the place where the coal was carried and making the whole available for carrying water only. Equipment is added which makes it possible to force the water forward for use in the locomotive. Thus equipped this auxiliary tender is not used for any purpose except carrying and providing-water for locomotive steam power.

The mode of operation may be briefly described. When eastbound trains arrive at their destination in the yard at Marion, Ohio, the conductor and flagman (or rear brakeman) “sign off duty,” the head brakeman detaches the locomotive, ordinary tender and auxiliary tender from the rest of the train, and the locomotive with its two tenders, manned by the engineer and fireman (and head brakeman between sunset and sunrise), is run to the ashpit in the roundhouse area, a distance of about two miles, where it is left. Here the hostler and helper put the locomotive and tenders away. As the turntable is not large enough to accommodate the whole, the auxiliary tender is uncoupled and the locomotive with ordinary tender is run upon the turntable and put away in the roundhouse under its own power. The hostler, assisted by his helper, then puts away the auxiliary tender in a similar manner using another locomotive, if necessary. The auxiliary tender is then repaired, if need be, serviced and refilled with water at the water crane. When the time comes for its use again, it is attached to the same or another locomotive and tender in the roundhouse area near the turntable and the whole is taken, under charge of its engineer accompanied by fireman, to Kenton avenue, at which point the head brakeman ‘ ‘ takes charge. ’ ’ It then proceeds to the outgoing westbound train to which it is coupled. The movement covers about two miles.

Appellee contends that the auxiliary tender is a car within the meaning of Section 12557-1 and therefore can be moved about the yards and roundhouse area only by an engine or locomotive that is manned by a full crew, consisting of one engineer, one fireman, one conductor and two helpers. Although a good deal has been said about the safety of the movement of an auxiliary tender without a full crew of five, it would seem at first blush that safety would hardly require five men to move an auxiliary tender alone by locomotive power about the roundhouse area. Oftentimes such a movement is for a distance of only a few feet. However that may be, we deem that we are not concerned with the question of safety but only with the question whether the movement is within the statute. If -it is-without the statute, the courts can give no relief, for the courts cannot legislate. The remedy, if one is-needed, is with the General Assembly.

In our judgment the locomotive, ordinary tender and auxiliary working together constitute an integral power unit and the status of the auxiliary tender is not changed by reason of the fact that it is temporarily detached for storage, servicing and refilling. This status too is constant from the time the auxiliary tender is detached at the ashpit until it is again attached to the same or another locomotive and ordinary tender to form a power unit for an outgoing train. There are movements in which the auxiliary tender',, like a dead engine, might attain a car status. But a movement of that kind is not involved here. The movement of an auxiliary tender within the roundhouse area for storage, refilling with water or other service is not within Section 12557-1, General Code, and does not. require a full crew of five men.

Order reversed.

Weygandt, C. J., Zimmerman, Bell, Williams and Turner, JJ., concur.

Matthias and Hart, JJ., dissent.  