Request By:
Mr. Robert E. Smith
Commissioner
Railroad Commission of Kentucky
1024 State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Commissioners of the Kentucky Railroad Commission are confused as to their jurisdiction as it relates to rail traffic in the Commonwealth of Kentucky. You need to know just where you stand.
The Railroad Commission, and the office of Railroad Commissioner, is established in Sec. 209 of the Kentucky Constitution. Unfortunately the constitutional section offers no guidelines or outline as to the precise duties of the commission. In fact, the section in part provides that " The powers and duties of the railroad commissioners shall be regulated by law; . . . ." (Emphasis added). This simply means that it is up to the General Assembly to enact statutes expressly setting forth such powers and duties. Thus the commission is a creation of the statutes. See
Louisville & N.R. Co. v. Commonwealth, 190 Ky. 78, 226 S.W. 113 (1920), holding that the railroad commission's powers are "confined to those fairly conferred by the statute. . . ."
It is first pertinent to consider rail traffic responsibilities of the Department of Transportation.
The Federal Railroad Administration has the responsibility for administering and enforcing all federal railroad safety laws. 49 U.S.C.A. Sec. 1652a. However, the Secretary of the United States Department of Transportation has the duty to provide financial assistance to the states for rail freight assistance programs. A state, to qualify for that rail rehabilitation program, must devise an adequate plan for rail service. We concluded in OAG 78-5, copy enclosed, that in Kentucky the Department of Transportation [Ky.] has the sole responsibility to administer the Railroad Rehabilitation Act program. However, the 1980-82 budget contains only a continuation budget for "rail transportation" , which, according to the Railroad Commission budget analyst, is designed to merely cover the administrative expenses and salaries of the Commission. The funding of the Railroad Rehabilitation Act program was discontinued. After a balance left over under the 1978 budget is expended on planning, that state activity will be at an end.
Under KRS 276.550, the Railroad Commission is authorized to enter into agreements with the Federal Railroad Administration to administer the provisions of the Federal Railroad Safety Act of 1970 [45 U.S.C.A. Sec. 421 et seq.]. However, any such agreements entered into pursuant to this authority are subject to the approval of the Secretary of Transportation of Kentucky, and the Secretary of Finance. See Sections 435 and 436 of 45 U.S.C.A., relating to investigative and surveillance activities of the state and enforcement of rules, regulations, orders, etc., by state agency. There is, however, no money in the 1980-82 budget for that program. The Railroad Commission is attached to the office of Secretary of Transportation, but only for administrative purposes. KRS 174.020(2). Thus KRS 276.550 is a hollow shell, without any state funding.
Every common carrier, including carriers by rail, are required by KRS 276.020 to furnish reasonably adequate service and facilities, and the charge made for any service rendered in the transportation of persons or property shall be just and reasonable. Every unjust and unreasonable charge for such service, and every unreasonable rule, regulation or practice in connection therewith, is prohibited and declared to be unlawful. See the criminal penalty of KRS 276.990(26).
The Railroad Commission has the duty to enforce laws relating to common carriers, including carriers by rail. The commission shall exercise a general supervision over the railroads of the state. KRS 276.030(3). The enforcement authority carries with it the power of investigation and surveillance.
The commission has supervision over intrastate rail transportation rates and service. See KRS 276.150, 276.160, 276.170, 276.290, 276.300, and 276.310. KRS 276.310 provides for hearings as to rail rates that are claimed to be unjust and unreasonable. See
Artemus-Jellico R. Co. v. Railroad Com'n ex rel. Rigsby, Ky., 511 S.W.2d 235 (1974).
The Railroad Commission has been characterized as an administrative body acting in a legislative and quasi-judicial capacity under constitutional authorization.
Louisville & Nashville R. Co. v. Commonwealth, Ky., 300 S.W.2d 777 (1957) [involving intrastate freight rate on coal]; and
Southern Ry. Co. v. Frankfort Distillery, 233 Ky. 771, 26 S.W.2d 1025 (1930) [involving shipping of whiskey intrastate] .
Where interstate rail freight rates are deemed excessive, unreasonable or discriminatory, the commission can appeal to the Interstate Commerce Commission for relief where the affected carriers will not change the rates. KRS 276.190.
The Commission may make and put into effect intrastate joint rates of two or more rail carriers. KRS 276.200(2).
The Railroad Commission, pursuant to KRS 276.410, may notify rail carriers, where public safety is involved, to make repairs on tracks and other rail facilities and give them a hearing in reference thereto. If a hearing is held, and the affected carrier fails to make such repairs or improvements within a reasonable time after the hearing, and the Commission believes such repairs or improvements are proper and necessary, the Commission must lay the facts before the Attorney General for his action, and shall report the facts fully to the next legislature. This statute in effect permits the Attorney General in an appropriate case to sue, for the Commonwealth, any carrier, not complying with the statute, for civil compliance. See
Louisville & N.R. Co. v. Commonwealth, 190 Ky. 78, 226 S.W. 113 (1920).
You ask about new legislation as affecting your jurisdiction.
House Bill 863 was enacted in the 1980 session, creating new sections in KRS Chapter 174, providing that the Secretary of the Department of Transportation [Ky.] shall be responsible for controlling and regulating the movement of all radioactive materials and the intrastate transport of other hazardous materials transported by all carrier modes within the Commonwealth. However, rail transportation is excluded from the Act.