Opinion
Nos. 20738, 20739 and 20740
Decided December 21, 1927.
Public Utilities Commission — Motor transportation companies — Application to extend certificated operation — Waiver of rights as to notice — Section 614-91, General Code — Waiver by protestant appearing by counsel and filing protest — Order granting extension sustained by evidence that existing service inadequate.
ERROR to the Public Utilities Commission.
These are proceedings in error seeking to reverse an order of the Public Utilities Commission. The facts out of which the controversy arises are as follows:
W.F. Reynolds is the owner and holder of a certificate of public convenience and necessity, No. 88, heretofore issued by the Public Utilities Commission, authorizing motor transportation from the city of Mansfield in Richland county, to the city of Delaware in Delaware county, passing through the city of Mt. Gilead in Morrow county. Said Reynolds filed an application with the Public Utilities Commission of Ohio for an extension of his operation, so that he would be entitled to operate, in addition to his present operation, a motor transportation line from a point about a mile and a half or two miles south of Mt. Gilead (said point being the intersection of the so-called state road with the road over which he is now operating) over various highways into the city of Columbus.
Pursuant to the statute, notice to each of the following transportation companies was sent by the Public Utilities Commission: C., C., C. St. L. Railway Company, Pennsylvania Railroad Company, Hocking Valley Railroad Company, Buckeye Stages, Inc., C., A. M. Electric Railway Company, Maag Bros. Transit, Chrisman Schuff, T. O. C. Railway Company, the Galion Mansfield T. Company, E.C. Harter, H.D. Snyder, Eastman Alguire, B. O. Railway Company, Motor Transit Company, and the Columbus Railway, Power Light Company.
The record discloses that there were filed four protests against the granting of the extension applied for. These were by the Columbus Railway, Power Light Company, the C., D. M. Electric Railway Company, Buckeye Stages, Inc., and C.M. Bebout. The Pennsylvania Railroad Company also protested, but the same was not urged.
On a hearing, the commission granted the application of the said Reynolds for the extension of his route, entering the following order:
"Leave Mt. Gilead bus station located on Main street, thence via Main street to corporation line, thence via state route No. 55 to its intersection with inter-county road known as the Old State Cleveland and Columbus pike, thence via the latter named road to its intersection with what is known as the Fulton pike, thence via the Fulton pike to and through the village of Fulton to its intersection with state route No. 61, thence via state route No. 61 to its intersection with what is known as the Marengo and Ashley pike, thence via the latter road to the village of Marengo and return to state route No. 61, thence via state route No. 61 to the county line of Morrow and Delaware counties, and to the intersection of Mt. Vernon and Delaware pike, thence via the latter named road to and through the village of Kilbourne, thence to the county line of Delaware and Franklin counties, via Old State road to and through the village of Flint to its intersection with Park road, thence via Park road to its intersection with the Clinton, Sharon and Blendon pike, thence to the corporation line of Columbus [and then follow various streets in Columbus] to 41 East Rich, end of line and reverse.
"Restriction."The applicant agrees not to handle passengers from a point north of Minerva Park to Columbus, and vice versa.
"And a proposed schedule of operations and rates and charges for such service.
"The commission, being fully advised, finds and hereby declares that the public convenience and necessity require the operation by the applicant as aforesaid.
"It is therefore
"Ordered, that upon the payment * * * of the taxes for the motor vehicles so to be used and the filing with this commission of the insurance policies required, a certificate be granted said applicant to operate over such route," etc., "subject to the reasonable local police regulations of the municipalities.
"It is further
"Ordered that applicant file with the commission a detailed statement of the motor vehicle equipment within five days."
Motions for a rehearing were filed by the C., D. M. Electric Railway Company, Buckeye Stages, Inc., and C.M. Bebout. The protestant Columbus Railway, Power Light Company filed no application for rehearing, apparently being satisfied with the findings of the commission, in the light of the restriction of the applicant to haul passengers from a point north of Minerva Park to Columbus, and vice versa. Upon a denial of these applications for rehearing, error was prosecuted to this court, and the matter is now here for determination, upon petitions in error of the three protestants, Buckeye Stages, Inc., C.M. Bebout, and the Columbus, Delaware Marion Electric Company, and their cases will be considered together.
Mr. Ralph H. Sanborn, and Mr. George T. Poor, for Buckeye Stages, Inc., and C.M. Bebout.
Mr. William P. Moloney, for Columbus, Delaware Marion Electric Co.
Mr. E.C. Turner, attorney general, and Mr. A.M. Calland, for defendant in error.
Mr. John F. Carlisle, Mr. C.E. McBride and Mr. Harry F. Bell, for W.F. Reynolds.
The grounds for reversal upon which plaintiffs in error rely are three:
First, that C.M. Bebout, owner of a certificate of public convenience and necessity authorizing the operation of a motor transportation company between Mt. Vernon, Knox county, and Mansfield, Richland county, was not given notice as required by law of the filing of the application or of the date of hearing.
The record shows that the actual operation of this line at the time of the filing of the application herein was by the Buckeye Stages, Inc., under lease from Bebout, and that such company was duly served with notice. The further fact is disclosed by the record that counsel announced his appearance at the inception of the hearing on behalf of Bebout, and that under date of July 15th Bebout signed a written protest, which was filed July 21st, against the granting of the extension in question. By so doing, he entered his appearance and waived any rights he might have had as to notice under Section 614-91, General Code. Long v. Newhouse, 57 Ohio St. 348, 49 N.E. 79.
Second, another ground upon which reversal is sought is that no proper map showing accurately the streets and highways and public roads over which the proposed route was to extend was filed with the application.
The commission found that the maps and blueprints filed and that are attached to the record were in such form as to substantially comply with Section 614-91, General Code, and the regulations of the commission. Examination of the same convinces us that the conclusion of the commission should not be disturbed in that behalf.
The third and paramount ground of reversal claimed is that this extension was establishing a new transportation operation between Mansfield, Mt. Gilead, and Columbus, without any showing made that public convenience and necessity demanded or required such operation. This ground is therefore based upon a determination of a question of fact and goes to the weight of the evidence.
The commission would be justified in granting this extension if the preponderance of the evidence showed that the public affected by such proposed extension did not have adequate common carrier transportation service, and that the granting of such extension would serve the convenience and necessity of the general public and eliminate the inadequacy and inconvenience of such lack of service, the needs of the public being the primary consideration.
Applying this rule, the preponderance of the evidence showed that the people of Mansfield, Lexington, Johnsville and Mt. Gilead, and the territory between said points, did not have any direct service whatsoever to Fulton, Marengo, Olive Green, Kilbourne, and Flint, a region in which there are centralized schools, county schools, and churches, and to points south to Minerva Park; nor did the public living in the territory along the route of the proposed extension have any service whatsoever to Mt. Gilead, Johnsville, Lexington, Mansfield, and points between; nor did the public living along the line of the proposed extension have adequate service into and out of the city of Columbus.
None of the protestants gives any public common carrier service to and from Flint, Kilbourne, Olive Green, Fargo, Marengo, and Fulton, to and from points either north or south of the extension, or to points within the extension. Such competing service is reached at considerable inconvenience to the public living along the line of the proposed extension.
The Public Utilities Commission apparently found that the public to be served by the proposed extension has not adequate common carrier transportation service; that there was a public convenience to be served and a necessity for such service.
Such being its conclusion and there being evidence sufficient to sustain the same, we cannot substitute our judgment for that of the commission. Entertaining these views, it is our conclusion that the findings and order of the commission are neither unreasonable nor unlawful, and the same are therefore affirmed.
Order affirmed.
MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.