Opinion
No. 21627
Decided May 29, 1929.
Public utilities commission — Motor transportation companies — Increase of freight equipment — Proof necessary that other transportation facilities do not exist in territory — Protestant unable to haul additional tonnage required by public necessity.
ERROR to the Public Utilities Commission.
Messrs. Mather, Nesbitt Willkie, for plaintiffs in error.
Mr. Gilbert Bettman, attorney general, Mr. T.J. Herbert, and Mr. E.J. Shover, for defendant in error.
This is an error proceeding from an order of the Public Utilities Commission, granting to the Knutsen Motor Trucking Company of Cleveland, Ohio, permission to increase its equipment to the extent of two additional motor vehicles and six semitrailers, with an aggregate carrying capacity of forty-three tons; its capacity before such increase being two hundred forty and one-half tons.
The protestant, Paul F. Reed, operates through the same territory, by a different route, under a certificate which he holds by assignment. His certificate authorized the operation of two White trucks, one of the capacity of two tons and the other of the capacity of three and one-half tons.
The record discloses that since the issuing of his certificate in 1923 no increase has been ordered by the commission, and his present equipment consists of one White truck of two ton capacity and one Mack International truck of two and one-half ton capacity. The reports under his certificate to the commission show an average transportation of one hundred and fifty tons per month.
The question made here is that the Knutsen Motor Trucking Company did not make a sufficient showing of necessity and convenience for an increase of truck transportation facilities to the extent of the increase granted, because it did not show, in addition to the showing that the applicant had been offered approximately that amount of transportation business that it did not have the facilities to transport, that there did not exist in the territory other truck transportation facilities sufficient to transport the additional tonnage.
We agree with the contention of the protestant that before a convenience and necessity is shown to exist that it must be shown that such facilities do not exist in the territory by any other motor transportation company; but in the instant case, while no witness was able to testify that he had called upon the protestant to transport tonnage for him and such transportation had been refused by the protestant because of his inability to make such transportation, the record does disclose that the equipment of the protestant has but a capacity of four and one-half tons, and his report shows that with a capacity of four and one-half tons he has been transporting on an average of one hundred and fifty tons per month, and discloses that with his four and one-half ton capacity it would be physically impossible for him to transport the additional forty-three tons, for the transportation of which the commission found a convenience and necessity to exist.
The record therefore does affirmatively show the present inability of the protestant to haul the additional tonnage which the necessity and convenience of the territory demands.
The order of the commission will be affirmed.
Order affirmed.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, MATTHIAS, DAY and ALLEN, JJ., concur.