Opinion
No. 40369
Decided March 15, 1967.
Public Utilities Commission — Motor transportation companies — Application for abandonment of portion of route — Sixty-day order issued — Final and appealable — No statutory right to dismiss or withdraw — Application — Denial of motion to dismiss not unreasonable or unlawful.
APPEAL from the Public Utilities Commission.
The appellant, Buchanan, filed with the Public Utilities Commission an application to abandon a portion of his irregular route certificate of public convenience and necessity, conditioned upon one Carter filing an application for a certificate of public convenience and necessity identical to the authority appellant asked permission to abandon. Carter filed such an application, and both applications were consolidated for hearing.
On January 19, 1966, the commission found that the application of Buchanan to amend his certificate is justified, and that the existing transportation service afforded by protestants is not reasonably adequate; issued a 60-day order to existing carriers to improve their service and that, if after such period they failed to supplement their service, the application of Carter should be granted; and ordered further that, pending final determination of the Carter application, the appellant should continue service under his existing certificate.
On February 18, 1966, appellant filed with the commission a notice of dismissal of his application. On May 3, 1966, the commission treated his notice of dismissal as a motion to dismiss and denied same. An appeal from the order denying the motion to dismiss brings the cause to this court for review.
Mr. Lewis S. Witherspoon and Mr. Roger F. Redmond, for appellant.
Mr. William B. Saxbe, attorney general, Mr. J. Philip Redick and Mr. Langdon D. Bell, for appellee.
There is no statute giving an applicant before the Public Utilities Commission a right to withdraw or dismiss his application. Although there is a statute authorizing dismissal of a Common Pleas Court action without prejudice, that statute permits such dismissal only "before final submission" of the action to the trier of the facts. Section 2323.05(A), Revised Code; Jacob Laub Baking Co. v. Middleton (1928), 118 Ohio St. 106.
The 60-day order of January 19 was a final appealable order. D.G. U. Truck Lines, Inc., v. Public Utilities Commission (1953), 158 Ohio St. 564.
Appellant offered no reason for granting his motion to dismiss his application, which motion was made after the final order of January 19.
The order of the commission in refusing to permit appellant to withdraw his application or dismiss it is neither unreasonable nor unlawful and is therefore affirmed.
Order affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.