Railroads — Full-crew law — Engine used to switch cars — Section 4999.08, Revised Code — "Engine or locomotive" construed — Tractor-like vehicle operated on rails or roads not included — Statutory construction.
1. Section 4999.08, Revised Code, being a penal statute, must be strictly construed.
2. Where reasonably possible, a statute should be given a construction which will avoid rather than a construction which will raise serious questions as to its constitutionality.
3. The words "engine or locomotive" as used in Section 4999.08, Revised Code, do not include a tractor-like vehicle equipped with both railroad wheels and rubber tires which may be operated either on railroad tracks or on roads and which is used to move railroad cars around a repair-shop yard. ( New York Central Rd. Co. v. Public Utilities Commission, 121 Ohio St. 383, distinguished.)
TAFT, C.J.
Section 4999.08, Revised Code, being a penal statute, must be strictly construed. Erie Rd. Co. v. Public Utilities Commission (1943), 141 Ohio St. 342, 48 N.E.2d 100.
Apart from certain language in the opinion in New York Central Rd. Co. v. Public Utilities Commission (1929), 121 Ohio St. 383, 169 N.E. 299, it would be very difficult to give serious consideration to a contention that this Trackmobile was an "engine or locomotive" within the meaning of those words as used in Section 4999.08, Revised Code. However, it is stated in that opinion that those words include any "self-propelled vehicle * * * used to switch cars" regardless of its name. It may be observed that nothing resembling such a statement is found in the syllabus of that case. Furthermore, that language must be read in the light of the facts of that case which disclose that the "vehicle" there involved was a locomotive, as that word has always been understood, even though it had a crane upon it.
Also, if the word "engine" in Section 4999.08, Revised Code, were construed to include this Trackmobile, a serious question would be raised as to whether the resulting application of the statute would be so arbitrary and unreasonable as to violate constitutional limitations on the police power. See Pennsylvania Rd. Co. v. Driscoll (1938), 330 Pa. 97, 198 A. 130, 336 Pa. 310, 9 A.2d 621; Pennsylvania Rd. Co. v. Schwartz (1958), 391 Pa. 619, 139 A.2d 525; Northern Pacific Ry. Co. v. Weinberg (1943, District Court, Minnesota), 53 F. Supp., 133; Western Pacific Rd. Co. v. State (1952), 69 Nev. 66, 241 P.2d 846. Where reasonably possible, a statute should be given a construction which will avoid rather than a construction which will raise serious questions as to its constitutionality. United States, ex rel. Attorney General, v. Delaware Hudson Co. (1909), 213 U.S. 366, 407, 53 L. Ed., 836, 849, 29 S. Ct., 527, 535; United States v. Harriss, 347 U.S. 612, 618, 98 L. Ed., 989, 996, 74 S. Ct., 808, 812.
For the foregoing reasons, we are of the opinion that the words "engine or locomotive" as used in Section 4999.08, Revised Code, do not include a tractor-like vehicle equipped with both railroad wheels and rubber tires which may be operated either on railroad tracks or on roads and which is used to move railroad cars around a repair-shop yard.
The Public Utilities Commission found that the brotherhoods had failed to establish that the railroad's operation of the Trackmobile was unsafe. On the record before us, we are of the opinion that that finding is not against the weight of the evidence.
The order of the Public Utilities Commission being neither unreasonable nor unlawful is affirmed.
Order affirmed.
ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.