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AGO 1951 No. 167 - November 09, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

WASHINGTON FULL CREW LAW

Presented facts do not constitute a violation of the Washington Full Crew Law.

                                                                   - - - - - - - - - - - - -

                                                                November 9, 1951

Honorable A. M. Johnson, Director
Department of Labor and Industries
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 167

Attention:  Mr. Ed Sorger, Supervisor

Dear Sir:

            Your letter of June 7, 1951, has been received, and I have carefully noted the matters therein contained.  The factual background you have related to me may be summarized as follows:

            On May 18, 1951, a railroad company operated within this state a train consisting of five loaded freight cars, four empty freight cars, and twenty-five occupied outfit (work) cars.  The crew consisted of five employees.

            The train was on a regular freight run, handled by the regular freight crew, and the outfit cars were merely being moved to a new location.

            The letter concludes:

            "Before proceeding * * * [with a] * * * complaint, I would greatly appreciate an opinion from your office, as to whether the case in question is in violation of the [Washington full crew] Law."

            You are advised that the facts you present do not constitute a violation of the Washington full crew act.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Section 1, page 650, Laws of 1911 (Rem. Rev. Stat. 10486) renders unlawful the operation of "any passenger, mail or express train consisting of four or more cars with less than a full passenger crew consisting of five men."

            Section 2, page 651, Laws of 1911 (Rem. Rev. Stat., 10487) prohibits the operation of "any freight train consisting of twenty-five or more cars exclusive of engine and caboose, with less than a full train crew consisting of six men."

            These above‑quoted sections are part of the Washington full crew law.  As the problem at hand deals with the composition of trains, it is not necessary to set out sections 1 and 2,supra, or the whole act, in full.  Further, there has been no violation of section 1, supra, for the crew of the train in question consisted of five men.  Your query is whether the railroad should have employed six men in the train's operation.

            The Washington full crew law has never been interpreted by our Supreme Court.  On occasion this office has construed the act, but none of these opinions are of assistance in attempting to solve the immediate problem.  Although Washington is not the only state having a full crew law, court decisions from other states have also proved, in the main, to be of little help.  I have been unable to find any reported case that is even nearly in point.  The problem is, therefore, treated as one of first impression, and I have given it no inconsiderable thought.

            Would a train made up of outfit cars fall within the purview of sections 1 or 2,supra?  It is my understanding that outfit cars, also called "work cars," are those railroad cars serving to accommodate the section hands.  These cars contain kitchens, showers, bunks, etc.  While on a particular construction or repair job, the employees live in such cars.  Upon completion of the work, the outfit cars and workers are moved to another location for further service.  It probably should here be noted that whether the outfit cars were occupied by workers during the movement in question is of no import.  The inherent characteristics, rather than the use put to, determine the classification of a railroad car.  As was said in an opinion to the Department of Labor and Industries, February 25, 1946:

            "The fact that a train does not carry passengers would not, in our opinion, change its character from that of a passenger train to that of a freight train.  The consideration of whether a train is either loaded with passengers or freight should not be allowed to determine its character for the purposes  [[Orig. Op. Page 3]] of this act since this might result in finding that certain trains are neither passenger trains nor freight trains.  It is believed that in common acceptance a train of freight cars retains its character as a freight train whether the cars be loaded or empty.  Likewise, it is believed that a train of passenger, mail or express cars should retain its character as a passenger train whether loaded or empty."

            InArizona Eastern Railway Co. v. State, 242 Pac. 870 (Ariz.), a freight train is defined as "one which carries freight alone, having a caboose attached for use of crew."  In the same case, a passenger train is held to be "one which carries passengers, their baggage, mail and express only."  These definitions are similar to those adopted by courts of other states.  See 17 Words and Phrases, page 689 et seq., and 31 Words and Phrases, page 390 et seq.  I have been unable to locate any case wherein outfit trains, or cars, are held synonymous, or nearly so, with either freight or passenger trains or cars.  Authorities treating the subject of railroads usually separately classify freight, passenger, and work cars.  On page 949 of Volume 18, Encyclopedia Britannica, under the heading of "Railway Service Cars," the following appears:

            "Many types of special cars for maintenance of the track, and general construction work in connection with railroad operations are necessary.  These include dump cars, motor and hand cars, locomotive cranes, steam shovels, pile drivers, ditchers, flangers, snow plows, sweepers, supply cars, air-brake instruction cars.  This rolling stock is known as non-revenue equipment.  Wrecking, instruction and dynamometer cars are included in the non-revenue group.  Section or inspection cars are used to convey the section men to and from their work and to conserve the time of other maintenance employees."

            Therefore, I can reach no other conclusion but that outfit cars are not synonymous with passenger or freight cars, but fall within their own distinct and separate category.

             [[Orig. Op. Page 4]]

            The problem then presents itself whether a regular freight train consisting of nine freight cars and on a regular run, by towing an additional twenty-five outfit cars, and without a crew of six, violates the law.  It is possible that the court would term the same a "freight train" and then make the mathematical calculation to determine if the law was violated.  That this would be done is highly improbable for the freight cars constitute but approximately thirty percent of the total cars.  Further, there is no authority sanctioning such a procedure to determine the classification of a train.

            Full crew statutes, such as Washington's, are criminal or penal in nature, and are in derogation of the common law.  Accordingly, they are strictly construed.  Kansas City Southern Railway Co. v. State, 106 S.W. (2d) 163 (Arkansas);State v. Nevada N. Railway Co., 233 Pac. 531 (Nevada); State v. Chicago and N. W. Railway Co., 237 N.W. 132 (Wisconsin);Erie Railway Co., et al v. Public Utilities, 48 N.E. (2d) 100 (Ohio).  The following cases demonstrate, in particular, how strictly the courts do construe full crew laws, probably for the reasons above given:  Bressler et al. v. Chicago & N. W. Railway Co., 42 N.W. (2d) 617 (Nebraska);Moredick v. Chicago & N.W. Railway Co., 252 N.W. 459 (Nebraska);Railroad Comm. of Texas v. Texas and New Orleans Railway Co., 42 S.W. (2d) 1091 (Texas); Missouri Pacific Railway Co. v. Moore, 197 S.W. (2d) 284 (Arkansas);State v. International, etc. Railway Co., 29 Tex. Cir. App. 149 (Texas);Contra Penn. Railway Co. v. Public Service Commission, 67 Pa. Sup. Ct. 569 (Penn.).

            Slightly analogous to the presented problem is the case of Missouri, etc. Railway Co. v. State, 131 S.W. (2d) 702 (Texas).  The facts in this case show the existence of a train consisting of a wrecking crane, flat car upon which crane rested while being transported to and from a work zone, a water car, and a coal car loaded with heavy stone for riprap purposes on right of way.  For moving purposes these special cars were usually attached to a regular freight train.  The court held that the Texas full crew law was not applicable to this situation.  Presumptively, there was no violation of the law, as long as the ratio of freight cars in proportion to crew members was within the limit set by law.  The court further found that it was not a construction train within the Texas full crew law.  However, the effect of the decision is circumscribed by the holding that even if the train was a construction train, the railroad did employ the required number of crew men for such a train, but see also, Erie Railway Co. et al v. Public Utilities,supra, wherein it was held that the full crew law did not apply to the movement of an auxiliary tender, even though this tender was often detached from the locomotive.

             [[Orig. Op. Page 5]]

            As previously noted, your inquiry raises the problem of the composition of trains.  A law in California requires an extra brakeman on trains of four or more passenger coaches.  InEx Parte Galivan, 122 Pac. 961, (Cal.), the court held that a train consisting of three passenger coaches and one baggage car, with only one brakeman employed thereon, did not violate any law.  On page 962 these words appear:

            "* * * A passenger train with only three cars carrying passengers is not often accompanied by many baggage, mail, or express cars; usually with but one or two.  It is to be presumed that the Legislature had in mind the usual and ordinary mode of operation, and not infrequent and occasional instances.  * * *"

            These latter words appear applicable to our problem.  A freight train to which outfit cars are attached is such a seldom occurrence that the legislature has not deemed it expedient to deal with the same.

            Cases dealing with trains consisting of freight and passenger cars are unanimous in their holdings that such are neither freight nor passenger trains, but mixed trains.  Arizona Eastern Co. v. State, supra; Joyner v. So. Carolina Railway Co., 1 S.E. 52 (South Carolina);State v. Chicago, St. Paul, etc. Railway Co., 212 N.W. 535 (Nebraska).  The latter case was a mandamus proceeding to compel the defendant to carry two brakemen upon each mixed train.  The Nebraska full crew law, as does the Washington law, mentions but freight and passenger trains.  The petitioner argued that the legislature did not intend that a railroad might attach a passenger car to a string of freight cars, and by that simple device avoid the necessity of carrying a second brakeman.  The court held:

            "So a custom has grown up of calling a train made up of both freight and passenger cars and carrying both passengers and freight a 'mixed train.'  'Mixed train' has come to have definition accordingly.  Legislators and everybody else recognize the term and its meaning.  Because of its function, the way it naturally operates, the Legislature has not seen fit to prescribe the size and character of its crew.  Until it does the road cannot be required to furnish its mixed train with another brakeman.  * * *" And in the Joyner case, supra, the following appears:

             [[Orig. Op. Page 6]]

            "* * * Inasmuch as the act on the subject of brakemen applied in terms to passenger trains and freight trains, considered separately, we do not see how it could be applied to a mixed train like the one in question; * * *"

            It would seem that the train in question was either a mixed train, or an outfit-freight train (for want of a better term), and not a freight or a passenger train.  As the Washington full crew legislation relates but to the latter two, and in view of the cited cases, I am forced to inescapable conclusion that the presented facts constitute no violation of the law.  Any remedy lies wholly within the powers of the legislature.

            You have also added an oral inquiry relative to the enforcement of the full crew law.  In an opinion to the Department of Labor and Industry, dated August 14, 1936, it was said:

            "If * * * the Department considers this violation of the law of sufficient moment to call for legal action, we would advise that the matter be taken up with the prosecuting attorneys of the counties mentioned and a criminal action be instituted in one of such counties against the offending railroad company.  The prosecuting attorneys have complete jurisdiction in the matter of instituting criminal proceedings.

            "The attorney general's office is always willing to extend any help possible when requested by the proper officials for assisting in any criminal proceedings.  But the primary duty in all criminal proceedings rests with the prosecuting attorney.

            " 'Under our criminal statutes, a prosecuting attorney has entire control of a criminal proceeding * * *' Christensen v. Anderson, 179 Wash. 368 ‑ 374."

            This is a sound view of the law.  It is expressly reaffirmed.

Very truly yours,

SMITH TROY
Attorney General

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