Opinion
No. 68-266
Decided December 4, 1968.
Railroads — Notice of diminution of passenger train service — Jurisdiction of Public Utilities Commission to order continuation of service — Order promulgated without hearing or supporting evidence.
1. Sections 4905.20 and 4905.21, Revised Code, do not require a railroad to secure authority from the Public Utilities Commission for a diminution of passenger train service at one of its stations where no abandonment of such service at that station would result. ( Delaware v. Pub. Util. Comm., 161 Ohio St. 332, approved and followed.)
2. The Public Utilities Commission may exercise no jurisdiction beyond that conferred by statute. (Paragraph one of the syllabus of Akron Barberton Belt Rd. Co. v. Pub. Util. Comm., 165 Ohio St. 316, approved and followed.)
3. The Public Utilities Commission has no jurisdiction to make an order directing a railroad to continue operating certain passenger trains that it proposes to discontinue, where no abandonment of passenger service at any station served by such trains will result and where such order is promulgated without a full hearing and without the production of evidence to support it. (Paragraph four of the syllabus of Akron Barberton Belt Rd. Co. v. Pub. Util. Comm., 165 Ohio St. 316, approved and followed.)
APPEAL from the Public Utilities Commission.
On December 26, 1967, the Baltimore Ohio Railroad Company, pursuant to Rule 1.25 of the Rules and Regulations of the Public Utilities Commission, duly filed its notice with the commission of the diminution of its passenger train service effective January 26, 1968, by the discontinuance of trains Nos. 31 and 32, operating between Athens and Cincinnati. The notice stated that the railroad's passenger trains Nos. 11 and 12 would continue to serve all of the stations formerly served by trains Nos. 31 and 32.
On January 2, 1968, the commission entered an order, with no application being filed and with no notice being given, directing the appellant to continue the operation of trains Nos. 31 and 32 beyond the proposed discontinuance date. Again, with no application being filed and no notice being given, the commission on January 23, 1968, issued another order in which it again directed the railroad company to continue the operation of trains Nos. 31 and 32 pending an investigation into the proposed discontinuance.
An application for rehearing was filed and denied and the railroad has filed a notice of appeal from the orders of January 2 and January 23, 1968.
Mr. Robert O. Smith, Jr., Messrs. Alexander, Ebinger, Holschuh Fisher, and Mr. John D. Holschuh, for appellant Baltimore Ohio Railroad Company.
Mr. Donald A. Brinkworth, for appellant Penn Central Company.
Mr. William B. Saxbe, attorney general, and Mr. J. Philip Redick, for appellee.
The railroad contends that the commission had no jurisdiction to order the railroad to continue operation of its trains Nos. 31 and 32 after January 26, 1968.
In Delaware v. Pub. Util. Comm. (1954), 161 Ohio St. 332, 119 N.E.2d 77, this court held that Sections 504-2 and 504-3, General Code (now Sections 4905.20 and 4905.21, Revised Code), did not require a railroad to secure authority from the Public Utilities Commission for a diminution of passenger train service at one of its stations where no abandonment of such service at that station would result.
The orders here appealed from in effect require the railroad to secure commission approval before such a diminution of service.
In support of its jurisdiction to make the orders here appealed from, the commission relies upon the following parts of the Revised Code:
Section 4905.04. "The Public Utilities Commission is hereby vested with the power and jurisdiction to supervise and regulate * * * railroads * * * and to promulgate and enforce all orders relating to the protection, welfare, and safety of * * * the traveling public * * *."
Section 4907.03. "Regulation of service applicable to railroads shall include:
"(A) The transportation of passengers and property between points within the state * * *."
Section 4907.24. "Each railroad shall furnish reasonably adequate service and facilities."
Section 4901.02. "* * * The commission shall possess the powers and duties specified in, as well as all powers necessary and proper to carry out the purposes of, Chapters 4901, 4903, 4905, 4907, 4909, 4921 and 4923 of the Revised Code."
Similar arguments were made in Akron Barberton Belt Rd. Co. v. Pub. Util. Comm. (1956), 165 Ohio St. 316, 135 N.E.2d 400, where paragraphs one and four of the syllabus read:
"1. The Public Utilities Commission is solely a creature of the General Assembly and may exercise no jurisdiction beyond that conferred by statute.
"* * *
"4. By Section 4905.04, Revised Code, the Public Utilities Commission is given the authority to determine as to track clearances for railroad yards, but, under that section, it has no power to promulgate an order without a full hearing and the production of evidence to support the findings upon which the order is based."
In the instant case, the orders appealed from were made without either a hearing or the production of evidence to support them.
We conclude that the Public Utilities Commission has no jurisdiction to make an order, directing a railroad to continue operating certain trains that the railroad proposes to discontinue, where no abandonment of passenger service at any station served by such trains will result and where such order is promulgated without a full hearing and without the production of evidence to support it.
The commission suggests that the orders appealed from are not final appealable orders. If we assume that they are not, the notice of appeal and the record before the commission disclose that the commission has no jurisdiction to make those orders. In such an instance, this court has original jurisdiction in prohibition to prevent the commission from issuing such orders. We see no reason for not exercising that jurisdiction in the instant case if the commission had no jurisdiction to make the orders of January 2 and 23, 1968.
For the foregoing reasons, the commission is directed to rescind the orders appealed from.
Judgment accordingly.
ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.