Summary
In Braddock v. Pub. Util. Comm. (1940), 137 Ohio St. 59, 17 O.O. 378, 27 N.E.2d 1016, Judge Day set forth the specific issue presented to the court as being "whether the Public Utilities Commission of Ohio has authority in law to consent to the transfer of a portion of a certificate of convenience and necessity to a purchaser thereof."
Summary of this case from Stony's Trucking Co. v. Pub. Util. CommOpinion
Nos. 27804, 27805, 27806, 27807 and 27808
Decided June 5, 1940.
Public Utilities Commission — Motor transportation companies — Certificate of public convenience and necessity — Transfer of part not authorized — Sections 614-87 and 614-87a, General Code.
Under the provisions of Sections 614-87 and 614-87 a, General Code, the Public Utilities Commission of Ohio is not vested with authority, express or implied, to consent to the transfer of a part of a certificate of public convenience and necessity to a purchaser thereof.
APPEALS from the Public Utilities Commission.
These five proceedings are appeals from the finding and order of the Public Utilities Commission, rendered September 6, 1939, in which the commission refused to permit the appellants to transfer parts of certain motor trucking certificates theretofore granted.
The appellant, Fred Braddock, an individual operating as a motor transportation company under the laws of Ohio, is the holder of certificate No. 1079, which permits him to operate over two different routes between Columbus and Portsmouth, Ohio, and also between Columbus and Winchester, Ohio; the appellant, Reinhardt Transfer Company, is a corporation and a motor transportation company holding certificate No. 2665, granting permission to haul freight between Cincinnati and Portsmouth, and between Dayton and Portsmouth, each route including one or more alternate routes restricted against intermediate service; the appellant, Cincinnati-Portsmouth Motor Express, Inc., a corporation and motor transportation company, is the holder of certificate No. 801, granting the right to haul freight between Cincinnati and Portsmouth, over the same general routes used by the Reinhardt Transfer Company. The former company is a subsidiary of the Reinhardt Transfer Company.
Prior to the filing of these applications with the commission, the appellant, Reinhardt Transfer Company, and the appellant, Fred Braddock, entered into an agreement which is in evidence.
By the terms of this contract Fred Braddock agreed to transfer to the Reinhardt Transfer Company all his rights to transport property between Columbus and Portsmouth, but no points intermediate thereto, and also his rights to use the southern portion of the route between Hillsboro and Portsmouth. The Reinhardt Transfer Company agreed to transfer to Fred Braddock all its rights to transport property between Cincinnati and Winchester, which were held by its subsidiary, the Cincinnati-Portsmouth Motor Express Inc., and the Reinhardt Transfer Company restricted itself against the hauling of Cincinnati-to-Columbus freight. This contract, however, was conditioned on the parties securing permission from the Public Utilities Commission of Ohio to make such transfers.
The appellants, therefore, filed the five applications to secure the necessary permission. Since numerous objections were filed by other motor transportation companies, a hearing was held before an examiner of the commission. At this hearing, the appellants agreed that if permission was not granted to make each and every transfer sought, they did not wish action to be taken on any one or more of the applications.
After hearing, all five applications were denied, both on the ground that there had been no showing of convenience and necessity and that there was no authority vested in law by which the commission could make transfers of a portion of a certificate.
Upon denial of applications for rehearing, appeals were taken to this court, and since the appellants have treated each of the five applications as an indispensable part of their plan, the appeals were heard by this court at the same time and are here considered together.
Mr. Herbert Baker, for appellants.
Mr. Thomas J. Herbert, attorney general, and Mr. Kenneth L. Sater, for appellee.
The controlling question is whether the Public Utilities Commission of Ohio has authority in law to consent to the transfer of a portion of a certificate of convenience and necessity to a purchaser thereof.
Appellants contend that the Public Utilities Commission has authority under the law to consent to the transfer of a part of a certificate, and in support thereof cite and rely upon Red Eagle Bus Co. v. Public Utilities Commission, 124 Ohio St. 625, 180 N.E. 261.
The appellee, taking the opposite side of the controversy, contends that Red Eagle Bits Co. v. Public Utilities Commission, supra, does not support appellants' position; and that, on the contrary, it is authority for the proposition urged by the appellee, namely, that a part of a certificate cannot be transferred.
In the cited case, the Penn Ohio Coach Lines Company was the owner of a certificate of necessity and convenience, which authorized motor transportation between Cleveland, Akron and Canton, and south of Canton to Dennison, Massillon and Dover. The lines company attempted to lease to the Dutt Company that portion of the certificate which authorized motor transportation south of Massillon and Canton. In reversing the order of the Public Utilities Commission, which had approved the lease, the court announced, in paragraph 3 of its syllabus, that:
"A certificate of public convenience and necessity, authorizing the operation of a motor transportation service over the highways of this state, is a personal license, which by the provisions of Section 614-87 a, General Code, may be transferred with the consent of the commission, after a public hearing thereon, but is not the subject-matter of a lease."
That case is not in point and lends support neither to the one nor to the other side of this controversy. The fact that only a part of the certificate was sought to be leased in the Red Eagle Bus Co. case, supra, did not enter into or have any effect upon the court's final determination of the issues there presented. The decision there rendered was grounded on the theory that the granting of a certificate of convenience and necessity is a personal license and, as such, not subject to lease.
The Public Utilities Commission of Ohio derives its power and authority from statute. New York, Central Rd. Co. v. Public Utilities Commission, 123 Ohio St. 370, 175 N.E. 596; City of Cincinnati v. Public Utilities Commission, 96 Ohio St. 270, 117 N.E. 381. Its power and authority to issue certificates of convenience and necessity and to consent to their transfer are to be found in Sections 614-87 and 614-87 a, General Code.
Section 614-87, General Code, after setting forth the procedure to be followed by the commission, provides, in part: "The commission may at any time for a good cause and upon at least fifteen days' notice to the grantee of any certificate and an opportunity to be heard, revoke, alter or amend any certificate issued under the provisions of this chapter."
Section 614-87 a, General Code, provides: "Upon the death of a person operating as a motor transportation company under a certificate of public convenience and necessity, his personal representative or representatives may operate under such certificate while the same remains in force and effect and, with the consent of the commission, may transfer such certificate.
"Upon the dissolution of a partnership operating as a motor transportation company under a certificate of public convenience and necessity, caused by death or otherwise, in the event the surviving or remaining partner or partners acquire the assets of the partnership, the partner or partners so acquiring such assets may continue to operate such certificate while the same remains in force and effect, and, with the consent of the commission, may transfer such certificate; upon the dissolution of a partnership operating as a motor transportation company under a certificate of public convenience and necessity, caused by death, in the event the surviving partner or partners do not acquire the assets of the partnership, then such surviving partner or partners and the personal representative or representatives of the deceased partner or partners may transfer such certificate with the consent of the commission. A receiver or trustee of a motor transportation company appointed by any court of competent jurisdiction may operate under any certificate or certificates held by such motor transportation company while the same remains in force and effect and, with the consent of the commission, may transfer such certificate or certificates.
"In all other cases a certificate of public convenience and necessity may be transferred with the consent of the commission after a public hearing had thereon.
"Applications for the transfer of certificates under this section shall be made in writing and shall be in such form as the commission may require. The applicants shall give notice of the filing of such application or applications by publication made once a week for three consecutive weeks prior to the date set for the hearing of such application or applications in a newspaper of general circulation published at the county seat of the county in which is located the principal place of business of the applicant or applicants, and the commission shall fix a date for the hearing of such application or applications and shall give the applicant or applicants at least ten days' written notice thereof."
Nowhere in these sections is there to be found language which as much as suggests that anything less than an entire certificate may be transferred. In Section 614-87 a, General Code, authorizing the Public Utilities Commission to consent to the transfer, the article "a" precedes the word "certificate," the provision reading: "In all other cases a certificate of public convenience and necessity may be transferred with the consent of the commission after a public hearing had thereon."
No other language, either preceding or following the word "certificate," expresses or indicates an intent of the Legislature to include within the meaning of the words "a certificate" anything less than a whole certificate. Had such been the legislative intent, words such as "or any part thereof," or language of similar import would and could have been used to modify the word "certificate."
As further indication of the fact that transfer of a part of a certificate was not contemplated by the Legislature, we find that Section 614-93, General Code, permits the changing of a certificate by extending or shortening the route, or otherwise varying the provisions of the certificate, upon application to the commission, thereby obviating the need for transfer of a part of a certificate. Section 614-93, General Code, and Sections 614-87 and 614-87 a, General Code, are in pari materia and may therefore be read and construed together.
In interpreting statutes, we are not concerned with the question as to what the Legislature intended to enact, but we are concerned with the question as to what the Legislature intended by what it did enact. It is our function to ascertain the sense in which words in a statute are used, and to give that sense effect, but it is not our function, or is it within our power, to add words to a statute by judicial interpretation.
We therefore hold that under the provisions of Sections 614-87 and 614-87 a, General Code, the Public Utilities Commission of Ohio is not vested with authority, express or implied, to consent to the transfer of a part of a certificate of convenience and necessity to a purchaser thereof.
The order of the Public Utilities Commission in each of these cases is affirmed.
Orders affirmed.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.