Opinion
No. 73-720
Decided March 13, 1974.
Motor transportation companies — Public Utilities Commission — Certificate of convenience and necessity — "Sixty-day order" — Purpose — Compliance hearing — Burden of showing — Evidence.
APPEAL from the Public Utilities Commission.
On March 20, 1970, Arnold J. Schwinnen, dba Schwinnen Trucking, filed an application with the Public Utilities Commission for an irregular route certificate of public convenience and necessity to transport "grain, from and to Allen and Van Wert counties, Ohio. Restricted to the transportation of commodities in bulk from and to Allen County, further restricted against transportation to or from Lima, Ohio and its commercial zone. Further restricted against transportation in dump trucks from and to Van Wert County, Ohio."
Hearings upon the application were held on February 18, 1971, and April 5, 1971, before an attorney examiner. Appellant, Robert E. Troyer, an existing certificated carrier providing a service in Allen County similar to that sought by the applicant, appeared at the latter hearing and protested the application insofar as it involved a request for authority to transport grain from and to Allen County.
The attorney examiner issued his report on February 18, 1972, recommending that the application be granted. In its opinion and order issued July 26, 1972, the commission concluded that the services provided by appellant were not reasonably adequate, particularly during the peak grain season, to service the demands of the public in Allen County, and that the public convenience and necessity, as to both Allen and Van Wert counties, required the transportation services sought by Schwinnen.
Pursuant to R.C. 4921.12, the commission issued a 60-day order, directing appellant "* * * to improve his services, within the limits of his authority, as follows:
"(A) Provide the necessary equipment to respond to all reasonable demands, particularly within the peak grain season, July through December, within the first business day following the day upon which the request is received, for adequate transportation of grain, from and to Allen County, Ohio.
"(B) Adequately publicize in newspapers, yellow pages of the telephone directory, by circulars or letters or other advertising media, to the shipping public handling the involved commodities and to other prospective shippers in the county involved, so as to advise such shippers of the availability of the service set forth hereinabove in paragraph (A).
"(C) Provide tariffs or lists of rates upon request by any shipper of the commodities which are the subject of the instant application.
"(D) Give reasonable assurance that service on a one day notice basis will continue after the end of the instant application."
Appellant did not take an appeal from this order of the commission.
On September 27, 1972, appellant filed his compliance report with the commission. A compliance hearing before an attorney examiner was held on November 11, 1972, at which appellant presented evidence of his compliance with the 60-day order. No other witnesses testified, nor was evidence introduced by any other party.
The attorney examiner issued her report on February 16, 1973, finding that appellant had complied with the 60-day order and recommending that the application of Schwinnen, insofar as it related to transportation of grain from and to Allen County, be denied.
Schwinnen filed exceptions to the report, and, on May 21, 1973, the commission subsequently overruled the findings of the attorney examiner, holding that appellant had not complied with the dictates of the 60-day order. The commission granted Schwinnen's application for the transportation of grain from and to Allen County, and denied appellant's application for rehearing.
The cause is now before this court upon an appeal as a matter of right.
Mr. Earl N. Merwin, for appellant.
Mr. William J. Brown, attorney general, Mr. Keith F. Henley and Mr. Walter E. Carson, for appellee Public Utilities Commission.
Messrs. Stiverson Alden, for appellee Arnold J. Schwinnen, dba Schwinnen Trucking.
The issuance of a 60-day order by the commission serves two functions: (1) It is determinative of the fact that the services of an existing carrier are inadequate to serve the public convenience and necessity; and (2) it sets forth the specific deficiencies which render the services of such carrier inadequate. Motor Service Co. v. Pub. Util. Comm. (1974), 37 Ohio St.2d 1. At the subsequent administrative hearing, the sole issue presented for determination is whether the existing carrier has complied with the dictates of the 60-day order. The carrier against whom the order has been issued has the burden of establishing, at the compliance hearing, that it has remedied the deficiencies in service as directed in the 60-day order.
In its opinion and order of May 21, 1973, overruling the report of the attorney examiner, the commission stated:
" Schwerman Trucking v. PUCO, 10 OS 2d 253, requires the protestant to put evidence on the record that he is not only authorized to service the area for which the application is made but that he is serving such area adequately. The commission found that in its [60-day] order dated July 26, 1972 that protestant Troyer herein is not providing adequate service in the area involved. The commission is also of the opinion, in line with the above Schwerman Trucking case that mere statements, standing alone, are insufficient to prove that protestant Troyer is providing adequate service as required by the sixty day order. The commission requires strict compliance with the provisions of the sixty day order. * * *"
The reliance of the commission upon Schwerman Trucking Co. v. Pub. Util. Comm. (1967), 10 Ohio St.2d 253, 227 N.E.2d 217, is misplaced. Schwerman held that if an applicant for an irregular route certificate to operate as a motor transportation company has established the public convenience and necessity for the authority sought, the commission cannot base the denial of the application upon a failure to show the inadequacy of the services of existing carriers, where there is no evidence in the record regarding the services of existing transportation facilities. The Schwerman holding was mandated by express statutory language, and was directed to the burden of proof and the adequacy of evidence at public convenience and necessity hearings held pursuant to R.C. 4921.10. Schwerman is not dispositive of questions concerning the burden of proof and adequacy of evidence in a compliance hearing held pursuant to the issuance of a 60-day order.
The "mere statements" referred to by the commission in its order were part of appellant's sworn testimony at the compliance hearing. That testimony was unchallenged and uncontradicted by any other evidence adduced at that hearing. As such, it should have been considered supportive of appellant's contention that he had complied with the 60-day order.
In addition to the fact that appellant's testimony was unrebutted, nothing appears in the record which suggests a finding by the commission that the attorney examiner erroneously considered appellant to be a credible witness.
Since appellant's testimony and the other evidence introduced at the hearing establish the correctness of the attorney examiner's conclusions upon the issue of compliance, the commission's order is unreasonable and unlawful, and is, therefore, reversed.
Order reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.