Opinion
No. 20829
Decided March 14, 1928.
Public Utilities Commission — Motor transportation companies — Certificate of public convenience and necessity revoked and cancelled — Applicant, upon affidavit, not operating in good faith when certificate granted — Certificate transferred when sale or consent thereto not authorized by statute.
ERROR to the Public Utilities Commission.
This is a proceeding in error from an order of the Public Utilities Commission of Ohio, revoking and canceling a certificate of convenience and necessity theretofore granted by the Public Utilities Commission to the plaintiffs in error. The cause was heard on an agreed statement of facts, which the Public Utilities Commission, in its finding, has epitomized as follows:
"On April 28, 1923, and for some time prior thereto, L.E. Painter and J.H. Coleman, as individuals, were the sole owners and operators of a motorbus line operating between Sebring, Ohio, and Alliance, Ohio, known as the Sebring-Alliance Bus Line. On the 14th day of August, 1923, said L.E. Painter sold all right, title, and interest which he possessed in the said bus line to W.A. Watson and G.A. Oyster, and that on the same date said W.A. Watson and G.A. Oyster also purchased one-sixth of the interest which the said J.H. Coleman held in the same line. L.E. Painter thus withdrew from the association with J.H. Coleman, and on the same date the said J.H. Coleman, W.A. Watson, and G.A. Oyster entered into a copartnership for the purpose of operating the Sebring-Alliance Bus Line, and continued the operation.
"On the 11th day of September, 1923, G.A. Oyster filed with the Public Utilities Commission of Ohio his certain affidavit for the purpose of obtaining a certificate of public convenience and necessity, stating that he was then a member of the Sebring-Alliance Bus Line, a motor transportation company, which was operating in good faith between Sebring and Alliance, Ohio, on the 28th day of April, 1923.
"Some time in the month of September, 1925, the said J.H. Coleman sold the interest which he had in the partnership which was formed on August 14, 1923, to the said G.A. Oyster and W.A. Watson. The said G.A. Oyster and W.A. Watson are now operating the said line.
"Certificate of public convenience and necessity No. 579 was granted by this commission on March 5, 1924, but no formal certificate was issued. The mere fact that no formal certificate issued has no bearing in this case."
The Public Utilities Commission further found:
"It is admitted by the defendant herein that no application for purchase and sale was ever made to the commission by L.E. Painter, J.H. Coleman, or W.A. Watson and G.A. Oyster, and that the consent of the Public Utilities Commission for the transfer or assignment of the said interests hereinabove set forth has never been secured.
"From the evidence adduced in this case, the commission cannot escape the conclusion that neither G.A. Oyster nor W.A. Watson were operating the Sebring-Alliance Motor Transportation Company in good faith on the 28th day of April, 1923. It is further conclusive that they had no right, title, or interest in or to the said transportation company on that date. The commission is of the opinion, and so finds, that the operation of L.E. Painter and J.H. Coleman, as individuals doing business under the name of the Sebring-Alliance Bus Line, on April 28, 1923, as a matter of law could not, and did not, inure to the benefit of W.A. Watson and G.A. Oyster.
"The affidavit to the commission was made by G.A. Oyster in the name of a partnership composed of J.H. Coleman, W.A. Watson, and G.A. Oyster. L.E. Painter and J.H. Coleman were powerless to assign their interest in the said operation to W.A. Watson and G.A. Oyster, in fact, the right to transfer interest in a bus business could not have been granted by this commission prior to August 4, 1925, when the Krueger-Collister amendment to the Freeman-Collister Act became effective."
Messrs. Postlewaite Bricker, and Mr. Donald Seiple, for plaintiffs in error.
Mr. E.C. Turner, attorney general, Mr. A.M. Calland, and Messrs. Herbruck, Shelter, Melchior Roach, for defendant in error.
The order of the Public Utilities Commission revoking certificate of public convenience and necessity No. 579 is affirmed upon the reasoning and authority of the case of Westhoven v. Public Utilities Commission, 112 Ohio St. 411, 147 N.E. 759.
Order affirmed.
MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.