1. Adoption of a rule requiring rail carriers to substitute
power-operated for hand-operated reversing gear, if the latter is
found to render the engine unsafe or to subject employees or others
to "unnecessary peril of life or limb" is within the scope of the
authority vested in the Interstate Commerce Commission by the
amended Boiler Inspection Act. P.
293 U. S.
458.
2. The Boiler Inspection Act, as amended, imposed upon the
Interstate Commerce Commission responsibility for adequate safety
rules, and to that end it granted to the Commission the power not
only of disapproving rules proposed by the carriers, but also of
requiring modifications of rules in force. P.
293 U. S.
459.
3. This power may properly be exercised on complaint of
Brotherhoods representing employees. P.
293 U. S.
461.
4. The Act confers authority on the Commission to prescribe by
rule specific devices or changes in equipment only where these are
required in order to remove "unnecessary peril to life or limb,"
and a finding by the Commission to that effect is essential to the
existence of the authority. P.
293 U. S.
462.
5. To support an order of the Commission amending the rules
under the Boiler Inspection Act so as to require substitution of
power-operated for hand-operated reversing gear in steam
locomotives, it must appear, and not merely by inference, that the
Commission found that the use of the hand gear, as compared with
the use of the power gear, causes unnecessary peril to life or
limb. In the absence of such a finding, the order is void. P.
293 U. S.
463.
5 F. Supp. 929 affirmed.
Page 293 U. S. 455
Appeal from a decree of the District Court, constituted of three
judges, which set aside an order of the Interstate Commerce
Commission amending the rules under the Boiler Inspection Act. The
suit was brought against the United States by a number of railroad
companies suing on behalf of themselves and other railroads. The
Commission and the chiefs of two organizations of locomotive
engineers and firemen intervened.
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. 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 reverse
Page 293 U. S. 457
gear." A. Johnston v. Atlantic Coast Line R., 190 I.C.C.
351.
The order of the Commission was entered on a complaint of the
Brotherhood of Locomotive Engineers and the Brotherhood of
Locomotive Firemen and Enginemen. The complaint alleged, in
substance, that, while power reverse gear is a suitable, safe, and
practical device, manually operated reverse gear is inherently
unsafe and unsuitable in principle and design, that it subjects
employees and the traveling public to unnecessary peril, and that
the use of locomotives equipped with hand reverse gears violates
the Boiler Inspection Act. The complaint prayed that the Commission
prescribe rules requiring that all steam locomotives be
equipped
"with power reverse gear, or other devices adequate to protect
the employees upon said locomotives from unnecessary peril to life
or limb, as provided in § 2"
of the Act.
Practically all the railroads of the United States were made
respondents. They challenged in their answers the jurisdiction of
the Commission on the grounds that the procedure was unauthorized
and that a power reverse gear was not a safety device or appliance
within the meaning of § 2 of the Boiler Inspection Act, as amended;
denied the essential allegations of the complaint; and, as
additional reason for refusing its prayer, set up the impaired
financial condition of the carriers. These issues were referred for
hearing to an examiner. Fifty-five days were devoted to the taking
of testimony. The witnesses numbered 337. Their testimony covered
6,491 pages. There were introduced, in addition, 109 exhibits, many
of them voluminous. The proposed report of the examiner occupies 40
pages of the printed record in this Court, and the railroads'
exceptions to it 60 pages. The exceptions were heard by a Division
of the Commission consisting of three
Page 293 U. S. 458
members, and reargument before the whole Commission was
denied.
This suit to set aside the order was brought by Baltimore &
Ohio Railroad and other carriers, suing on behalf of themselves and
substantially all the other railroads. The original defendant was
the United States. The Commission, Grand Chief Johnson of the
Brotherhood of Locomotive Engineers, and President Robertson of the
Brotherhood of Locomotive Firemen and Enginemen are defendants by
intervention. The case was heard by the District Court, three
judges sitting, on a transcript of the record before the
Commission. The railroads again contended that the Commission
lacked authority to entertain the complaint. They insisted also
that the order was void for lack of essential findings of fact.
These objections were overruled. But the court, citing among
others, the
Chicago Junction Case, 264 U.
S. 258, and
United States v. Abilene & Southern
Ry. Co., 265 U. S. 274, set
the order aside, on the ground that the Commission had acted
arbitrarily, in failing to give consideration and legal effect to
pertinent uncontradicted facts having a controlling bearing upon
the issues, and in disregarding undisputed evidence. 5 F. Supp.
929. An appeal to this Court by all the defendants was allowed. The
appellants contended that the action of the District Court
constituted substitution of its judgment for that of the
Commission. The argument here was devoted, in large part, to the
consideration of the findings of the lower court charging disregard
by the Commission of the evidence before it. For reasons which will
be stated later, we have no occasion to enter upon that
inquiry.
First. The Commission clearly has authority, in an
appropriate proceeding, to forbid the use of a locomotive equipped
with a manually operated reverse gear if, by reason thereof, the
engine is rendered unsafe or subjects employees of the railroad or
others to "unnecessary peril
Page 293 U. S. 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,
272 U. S.
611.
Second. The railroads contend that, in the proceeding
under review, the Commission lacks authority to make any change of
the existing rule concerning reverse gears; that authority to
initiate changes in existing rules was denied to it; that the rules
governing boilers and their appurtenances approved June 2, 1911,
and the additional ones governing locomotives, tenders, and
appurtenances, approved October 11, 1915, cannot be changed except
upon application of the carriers or with their consent. The
argument is that the Boiler Inspection Act is an independent and
complete piece of legislation, and thus the Commission is denied in
respect to locomotives those general powers which it exercises in
other connections; that, by the original Act of 1911, the right to
initiate rules was, by § 5, conferred not upon the Commission, but
upon the several railroads, and, only to the extent that one or
more of the carriers failed to act within three months, upon the
chief inspector; that the Commission's power of requiring
modifications was limited to the rules originally filed; that, in
respect to subsequent changes therein,
Page 293 U. S. 460
its sole function is that of approval or disapproval of the
carriers' proposals, and that the Commission's only other authority
in respect to locomotives is that conferred by § 6 of reviewing the
action of the chief inspector in declaring individual locomotives
unfit for service.
To hold that the authority of the Commission is thus limited
would defeat, in large measure, the purpose of the legislation, and
would be inconsistent with long established practice. Congress
imposed the strictly administrative duties, in the main, upon the
chief inspector. But it specifically directed, in § 6, that the
"first duty [of the district inspectors] shall be to see that
the carriers make inspections in accordance with the rules and
regulations established or approved by the Interstate Commerce
Commission."
Upon the Commission were conferred, besides some strictly
administrative powers, both
quasi-legislative and
quasi-judicial functions. The latter it was authorized to
exercise only in the appellate capacity of reviewing, under § 6,
orders of the chief inspector declaring an individual locomotive
unserviceable. Its legislative power was to be exercised in the
making of rules. Section 5 of the original Act provided that
"each carrier subject to this Act shall file its rules and
instructions for the inspection of locomotive boilers with the
chief inspector within three months after the approval of this Act,
and after hearing and approval by the Interstate Commerce
Commission, such rules and instructions, with such modifications as
the commission requires, shall become obligatory upon such
carrier."
When this Act was passed, in 1911, there were doubtless already
in force on each railroad some rules established by the carrier.
And likewise, in 1915 and in 1924, when the scope of the Act was
extended, there were doubtless in force on each railroad rules
established by the carrier governing parts, appurtenances, or
engines not falling within the field covered by the previously
existing legislation. Naturally those carrier
Page 293 U. S. 461
rules would be the starting point in the Commission's
rulemaking, and naturally it would be much influenced, as well as
instructed, by the chief inspector's proposals or recommendations.
But the responsibility for rules adequate to insure safety was
imposed by Congress upon the Commission, and, to discharge that
duty, it was essential that the Commission also should possess the
initiative in rulemaking. To this end, it was granted the power not
only of disapproving proposed rules, but also of requiring
modifications of those in force. The power so conferred may
obviously be exercised, as was done here, on complaint of the
brotherhoods representing employees directly affected.
In the
Napier case, the question directly before the
Court was not the authority of the Commission to initiate rules. It
was the validity of state laws and rules prescribing specific
safety devices on locomotives. But the objection now raised by the
railroads was discussed by counsel and was considered by the Court.
The validity of the state laws and regulations was challenged on
the ground that the Boiler Inspection Act had occupied the field,
and, as the question whether it had done so was one of statutory
construction, the provisions of the act were necessarily examined.
The conclusion that the Commission possesses the authority to make
rules on its own initiative, or upon complaint, was the basis of
the decision there made. (
See pp.
272 U. S.
611-613.) Referring to the argument of the states
"that the authority delegated to the Commission does not extend
to ordering the use or installation of equipment of any kind,
Baltimore & Ohio R. Co. v. Groeger, 266 U. S.
521,"
we said:
"The duty of the Commission is not merely to inspect. It is also
to prescribe the rules and regulations by which fitness for service
shall be determined. Unless these rules and regulations are
complied with, the engine is not 'in proper condition' for
operation. Thus, the Commission
Page 293 U. S. 462
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, 16 F.2d
313.
Third. The railroads contend that, to support the
order, certain basic findings are essential, that these were not
made, and that hence the order is void. This contention is, in our
opinion, sound. The Act does not confer upon the Commission
legislative authority to require the adoption on locomotives of
such devices as, in its discretion, it may from time to time deem
desirable. The operation of an engine, however equipped, involves
some "danger to life or limb." At common law, the carriers were
"free to determine how their boilers should be kept
Page 293 U. S. 463
in proper condition for use without unnecessary danger."
Baltimore & Ohio R. Co. v. Groeger, 266 U.
S. 521,
266 U. S. 529.
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,
264 U. S. 258,
264 U. S.
263-265, [
Footnote
5] the order may be set aside unless it appears that the basic
finding was made.
Florida v. United States, 282 U.
S. 194.
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. 464
steam locomotives "equipped with hand reverse gear as compared
with power reverse gear causes unnecessary peril to life or limb"
is left entirely to inference. This complete absence of "the basic
or essential findings required to support the Commission's order"
renders it void.
Florida v. United States, 282 U.
S. 194,
282 U. S. 215.
Compare Wichita Railroad & Light Co. v. Public Utilities
Comm'n, 260 U. S. 48,
260 U. S. 58-59;
Mabler v. Eby, 264 U. S. 32,
264 U. S. 44-45.
[
Footnote 7]
In the Florida case, the legal distinction was pointed out
between what may be termed
quasi-jurisdictional findings,
there held to be indispensable, and the "complete statement of the
grounds of the Commission's determination" which was declared in
Beaumont, S.L. & W. Ry. Co. v. United States,
282 U. S. 74,
282 U. S. 86, to
be desirable for a proper consideration of the case in the courts.
The lack of such a complete statement, while always regrettable
because unnecessarily increasing the labor of
Page 293 U. S. 465
the reviewing court (
compare Virginian Ry. v. United
States, 272 U. S. 658,
272 U. S. 675), is
not fatal to the validity of the order. It is true that formal and
precise findings are not required under § 14(1) of the Interstate
Commerce Act, 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,
246 U. S. 487;
Meeker v. Lehigh Valley R. Co., 236 U.
S. 412,
236 U. S. 428.
That provision relieves the Commission from making comprehensive
findings of fact similar to those required by Equity Rule 70 1/2.
But § 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.
[
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 counterbalance 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.
[
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.,
282 U. S. 522,
282 U. S.
527-529.
[
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 travelers 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 their 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,
290 U. S. 80.
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'n v. United States, 283 U.
S. 765,
283 U. S. 773;
Alabama v. United States, 283 U.
S. 776,
283 U. S. 779;
Louisiana Public Service Comm'n v. Texas & N.O. R.
Co., 284 U. S. 125,
284 U. S. 132;
Illinois Commerce Comm'n v. United States, 292 U.
S. 474,
292 U. S.
481-483;
Ohio v. United States, 292 U.
S. 498,
292 U. S. 511;
Montana v. United States, 2 F.
Supp. 448,
aff'd, 290 U.S. 593;
Kentucky v. United
States, 3 F. Supp.
778.
See, too, New York v. United States, 257 U.
S. 591,
257 U. S.
600.
[
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 § 3 of the Act of June 29, 1906, c. 3591, 34
Stat. 589, 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 39 U. S. Co. v.
Stimpson, 14 Pet. 448,
39 U. S. 458;
United States v. Chemical Foundation, 272 U. S.
1,
272 U. S.
14-15.