Summary
In Beiter Line, this court stated only that repeated findings of public convenience and necessity were not required; the concept was not made irrelevant.
Summary of this case from Reynoldsburg Trucking, Inc., v. Pub. Util. CommOpinion
Nos. 34580 and 34610
Decided March 7, 1956.
Motor transportation companies — Commercial zones — Public Utilities Commission authorized to establish — Commercial zones outside municipal corporations — Specific finding of public convenience and necessity not prerequisite — Section 4921.26, Revised Code.
1. Under the provisions of Section 4921.26, Revised Code, where industrial plants or other enterprises are located in a district which is outside but commercially a part of a municipal corporation, the Public Utilities Commission, on its own motion or on petition of any interested common carrier by motor vehicle or shipper, may establish a zone surrounding such municipal corporation within which all common carriers by motor vehicle transporting property over regular or irregular routes and authorized to serve such municipal corporation as a point of origin and destination of shipments shall be authorized to serve such commercial zone in the same manner and to the same extent as they are authorized by their respective certificates to serve such municipal corporation.
2. In establishing a commercial zone surrounding a municipal corporation, under the provisions of Section 4921.26, Revised Code, the Public Utilities Commission is not obligated, as a condition precedent to making an order creating such a zone, to make a specific finding that there is public convenience and necessity as to extended motor carrier service within such zone.
APPEALS from the Public Utilities Commission.
These cases are appeals from two final orders of the Public Utilities Commission whereby commercial zones are established as to the municipal corporations of Lorain, Ohio, and Cambridge, Ohio, respectively, for the consequent extension within such zones of the authority of each regular and irregular-route common carrier by motor vehicle authorized by its respective certificate to serve each such concerned municipal corporation as a point of origin and destination of shipments as authorized under Section 4921.26, Revised Code. Under statutory authority, the Public Utilities Commission, on its own motion or on petition of any interested common carrier by motor vehicle or shipper, may establish such commercial zones.
In the Beiter case (No. 34580), the joint petitioners for the establishment of the zone are City Transfer Company, a common carrier which has a certificate authorizing irregular-route operations to and from Lorain; Kuntz Joyce, an irregular-route carrier with authority to operate to and from Lorain; and Stevenson Transfer Storage, Inc., with authority to operate in Lorain. The protestants and appellants are The Beiter Line, Inc., which has a regular-route certificate authorizing it to operate over certain highways within the proposed commercial zone for Lorain, and the Liberty Highway Company and The Norwalk Truck Line Company, which also serve Elyria and Lorain and have regular-route authority over certain highways within the Lorain zone.
A hearing was had before an attorney-examiner who found that the area proposed by the petitioners is commercially a part of the city of Lorain but recommended that the petition be dismissed. In its order the commission refused to follow the recommendation of the examiner and ordered that a commercial zone for Lorain be established.
The commission made certain findings of fact, pertinent among which are the following:
"(2) The commission has jurisdiction to hear and determine the issue presented.
"(3) The area in question in the instant case is commercially a part of the city of Lorain, Ohio, and should be included within a commercial zone of the city of Lorain, Ohio, under authority of Section 4921.26 * * * Revised Code of Ohio, for the following reasons:
"(a) This area is adjacent to the city of Lorain.
"(b) There is business activity between this area and the city of Lorain.
"(c) There are industrial plants and other enterprises located within this area.
"(d) This area south to State Route 254 receives its water and sewage service from Lorain.
"(e) Telephone service is furnished to this area by the Lorain Telephone Company and/or the Elyria Telephone Company.
"(f) Lorain city officials have plans for the future annexation of this area to the city of Lorain.
"(g) That all common carriers transporting property over regular or irregular routes authorized to serve Lorain, Ohio, should be authorized to serve the commercial zone in the same manner and to the same extent as they are authorized by their respective certificates to serve Lorain, Ohio * * *."
In the International case (No. 34610), the White Transportation Company filed a petition asking that a commercial zone be established for the city of Cambridge. It is the holder of a certificate authorizing operations over a regular route among Cambridge and certain other cities. The protestants in this case are International Motor Freight Company, the appellant herein, which has a certificate authorizing operations over a regular route on certain highways between Cambridge and other parts of Ohio, and Eagle Freight Lines, Inc., which has a certificate authorizing operations over an irregular route to and from Cambridge and the area within five miles thereof.
After hearing before an attorney-examiner, he recommended the establishment of the zone, and the order of the commission established it.
The commission made certain findings of fact, pertinent among which are the following:
"(2) The commission has jurisdiction to determine the issue presented.
"(3) The area within a three-mile radius of the city of Cambridge is commercially a part of Cambridge and should be included within the commercial zone of Cambridge, under authority of Section 4921.26 * * * Revised Code of Ohio, for the following reasons:
"(a) This area is adjacent to the city of Cambridge.
"(b) There is business activity and financial dealings between the industrial plants and enterprises in this area and people and institutions in Cambridge.
"(c) There are industrial plants and other enterprises located within this area.
"(d) Industrial plants and enterprises in this area receive city utility services from Cambridge, except sewage service, which service Cambridge can not legally render outside its city limits.
"(e) Industrial plants and enterprises in this area receive telephone service from the same telephone company which renders service in Cambridge.
"(f) The industrial plants and enterprises within this area have Cambridge mailing addresses.
"The commission further finds:
"That all common carriers transporting property over regular or irregular routes authorized to serve Cambridge, Ohio, should be authorized to serve the commercial zone to the same extent as they are authorized to furnish service under their respective certificates; and
"That such commercial zone shall consist of and embrace an area extending three (3) miles from the corporate limits of Cambridge, Ohio, as designated and existing on July 28, 1954."
At the hearings in both causes, the appellants' testimony tended to show that the services in these transportation areas were already adequate. The petitioners, claiming that public convenience and necessity was not an issue in these causes, presented evidence tending to show the commercial growth of the areas in the proposed zones and the close commercial relationship between the municipalities and the zones.
In both causes, the appellants filed applications for rehearing, specifying as error the failure of the commission to find that public convenience and necessity not only must be considered but must be shown and found to exist in the zonal territory, as a condition precedent to the establishment of commercial zones.
After the commission denied the applications for rehearing on this ground, the appellants, in each cause, filed a notice of appeal to this court and the causes are now here for consideration on appeal.
Mr. Elber J. Shover and Mr. Robert N. Krier, for appellants.
Mr. C. William O'Neill, attorney general, Mr. Paul Tague, Jr., and Mr. Ralph N. Mahaffey, for appellee.
The sole issue in each of these cases is whether the Public Utilities Commission may, under the provisions of Section 4921.26, Revised Code, upon application by a motor transportation company for authority, in addition to its operations within the municipal corporation included in its certificate, to operate over all highways, roads and streets and to serve all industrial plants and other enterprises within an encircling territory outside but commercially a part of such municipal corporation, grant such application without first considering and finding public convenience and necessity as to motor carrier service within such zone.
The appellants take the position that the extension of the territory over which the holder of a certificate of public convenience and necessity may operate calls for the same adjudication as to the issue of public convenience and necessity as is made in granting an original certificate to a public motor carrier.
It has been held that it is incumbent upon an applicant for an original certificate of public convenience and necessity or for the extension of an existing certificate to show both convenience and necessity. Lykins v. Public Utilities Commission, 115 Ohio St. 376, 154 N.E. 249; Canton-East Liverpool Coach Co. v. Public Utilities Commission, 123 Ohio St. 127, 174 N.E. 244; A. T. Motor Freight, Inc., v. Public Utilities Commission, 125 Ohio St. 617, 184 N.E. 11; Continental Freight Forwarding Co. v. Public Utilities Commission, 126 Ohio St. 16, 183 N.E. 790; Lorain-Amherst Transit, Inc., v. Public Utilities Commission, 147 Ohio St. 376, 71 N.E.2d 705.
And it has been held that, where existing motor transportation service is reasonably adequate to meet the needs of the particular territory, authorization of a new and additional service is not warranted. Dayton Xenia Motorbus Co. v. Public Utilities Commission, 115 Ohio St. 706, 156 N.E. 141.
Section 4921.26, Revised Code, under which the Public Utilities Commission is authorized to create commercial zones surrounding municipalities and under which the Public Utilities Commission acted in these causes, provides in part as follows:
"Where industrial plants or other enterprises are located in a district which is outside but commercially a part of any municipal corporation, the Public Utilities Commission, on its own motion or on petition of any interested common carrier by motor vehicle or shipper, may, after investigation, notice, and hearing, determine and fix the limits of a zone surrounding such municipal corporation, and may include in such zone any adjacent territory, incorporated or unincorporated, which it finds commercially a part of such municipal corporation. Upon and after the effective date of an order establishing any such commercial zone, all common carriers by motor vehicle transporting property over regular or irregular routes and authorized to serve such municipal corporation as a point of origin and destination of shipments shall, by virtue of and in accordance with such order, serve such commercial zone in the same manner and to the same extent as they are authorized by their respective certificates to serve such municipal corporation. The commission may attach such conditions to any such order as, in its judgment, the public convenience and necessity requires." (Italics supplied.)
By the terms of the foregoing statute, there appear certain indicia from which this court concludes that the commission is not required to make a specific finding of convenience and necessity as to such previously certificated motor carrier within the municipality in establishing such commercial zone. In the first place, the commission may, under the statute, sua sponte establish such zones without application or without hearing. In such a case its determination to establish the zone is sufficient without going into the issue of convenience and necessity, and, if the commission has such power on its own motion, that power can not be lessened by the fact that an application has been filed and considered as a basis of its action.
In the second place, the issue as to convenience and necessity has already been determined in granting certificates to the carriers already serving the corporations themselves, since the zone extensions authorized under the statute must be commercially a part of the corporations. In other words, when the commission makes the finding that the zone is "commercially a part of such municipal corporation," it, in effect, finds that there is convenience and necessity which is the very object of such zone extension. Furthermore, the commission has the power under the statute to attach through its order for such zone "such conditions * * * as, in its judgment, the public convenience and necessity requires."
Finally, the same result may be effected by the municipality itself by the extension of its boundaries by annexation of the territory comprehended by the zone, although, under Sections 4921.02 and 4921.04, Revised Code, a municipality is precluded from supervising motor transportation companies within its territorial limits.
Under the statute the commission has power to act, and from the records in these cases this court is unable to find that the orders of the commission are unreasonable or unlawful. This court has frequently held that an order of the Public Utilities Commission will not be disturbed by this court unless such order is against the manifest weight of the evidence. Continental Freight Forwarding Co. v. Public Utilities Commission, supra; Lorain-Amherst Transit, Inc., v. Public Utilities Commission, supra.
The orders of the Public Utilities Commission in both causes are affirmed.
Orders affirmed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.