Title 49 C.F.R., Sec. 10.227 (1949 Edition) provides that repairs to stations and office building shall be part of the expense account of the operating carrier. Listed as one of the items included within this definition are 'washrooms'. Under the same Regulation, Sec. 10.143, revenue from washrooms would be included under operating revenue. It is clearly evident, therefore, that in the view of the Interstate Commerce Commission and its accounting procedures, operation of stations including washrooms, and the income and expense thereof are part of the operations of the railroad in its true sense as a common carrier.
The Government in this case has argued that washrooms, even though operated by the railroad, should come under the same classification as newsstands, restaurants, haberdasheries, gift shops and the other myriad activities operated by private individuals in and around station property which are admittedly a convenience to the travelling public. This ignores the realities of the situation since these types of enterprises are operated by private individuals or corporations for individual profit and have no connection with the duties and functions of the railroads. The Interstate Commerce Commission, on the other hand, has held in one instance a restaurant operated by a railroad which, although open to the public, was used almost exclusively by passengers and employees of the railroad, and which was necessary for carrier purposes, to be a common carrier facility. Valuation Docket No. 828, Missouri, Kansas & Texas Railway Company et al., 34 Val.Rep. 293.
A review of many cases contained in the Valuation Reports of the Interstate Commerce Commission does not sustain the contention of the Government that either the operation or the manner of operation of the facilities involved in the instant case in any way destroy the apparent classification under Commission Rules as common carrier property used for common carrier purposes.
We are dealing here with a situation which is an integral and necessary part of station and terminal facilities for the use of passengers of the railroad in its capacity as a common carrier. Passengers and prospective passengers are business invitees of the railroad the moment they step upon railroad property. 13 C.J.S., Carriers, § 645, defines the rights of the passengers and the duties of the carrier in that regard.
'The duties of a carrier require that it should furnish reasonable stational facilities for the accommodation of travellers on its lines, and it is the duty of a railroad company to maintain a waiting room for the comfort of passengers at junctions or intermediate points, and to allow passengers the use of it for a reasonable length of time before and after the arrival and departure of trains.'
That washrooms and toilet facilities are a necessary and integral part of such facilities cannot be successfully contested. Railroads for over one hundred years have recognized their duty in this regard. The fact that the Interstate Commerce Commission has permitted local authorities, state and municipal, to regulate sanitary conveniences in station and terminal facilities is not in derogation of the powers conferred upon the Interstate Commerce Commission by Congress as affecting common carriers. The Interstate Commerce Commission has recognized in express language that it has powers which for purposes of expediency or practicality it does not choose to exercise. In the case of Stopher v. Cincinnati Union Terminal Co., 246 I.C.C. 41-46, is found the following language:
'Railroads render various minor services, such as furnishing rate and ticket information, for which no direct charge is made, and in such instances it is obvious that situations are unlikely to arise with respect to them which require the exercise of our jurisdiction.'
It requires little imagination to realize that local authorities are in a much better position to supervise the installation and use of sanitary facilities affecting public health than would be a federal agency such as the Interstate Commerce Commission. As a matter of practicality in nearly every State of the United States, the State itself delegates the duty of such supervision to the local municipal authority. In neither case can such delegation be said to be in anywise a limitation of powers as is suggested by the Government in its brief in this case.
The Office of Price Stabilization, a temporary agency, is here attempting to bring within the purview of its powers, functions heretofore entrusted to a permanent agency charged by Congress with special duties requiring expert knowledge and delicate administrative judgment. That Congress by giving a broad exemption to public utilities and common carriers did not intend this result is evident from the exemption contained in Section 406 of the Defense Production Act, 50 U.S.C., Appendix, § 2106, which provides:
'Nothing in this title shall be construed to require any person to sell any material or service, or to perform personal services.'
This privilege of selling or refusing to sell, performing or refusing to perform, is clearly applicable to private business generally, but is not applicable to a common carrier which must act solely through the regulatory body, the Interstate Commerce Commission, and may not suspend services of any kind without the Commission's permission. Nor do the provisions of Section 402(b)(2), (c), 50 U.S.C., Appendix, 2102, which provide for fair and equitable charges under the Defense Production Act, sustain the position of the Office of Price Stabilization. The construction contended for by the Director, Office of Price Stabilization, would give to him powers which overlap with those of the Interstate Commerce Commission in the regulation of common carriers. Such an incongruous situation with division of authority and resultant confusion between a permanent, technical agency and a temporary, emergency agency was certainly never intended by the Congress of the United States.
I hold, therefore, that the exemption contained in Section 402(e) of the Defense Production Act of 1950 is applicable to the charges involved in this case; that the Director, Office of Price Stabilization, is without authority to fix by any general or special ceiling price regulation charges made by a common carrier for toilet and washroom facilities; that the motion of the defendant must be granted.
An Order will be entered dismissing the Complaint.
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