Opinion
No. 21317
Decided January 16, 1929.
Public Utilities Commission — Motor transportation companies — Procedure upon application to increase equipment, jurisdictional — Increase permitted without compliance with statutes void — Sections 614-91 and 614-93, General Code — Commission's power unaffected by competitor's delay in complaining.
1. The requirements of Sections 614-91 and 614-93, General Code, as to the procedure to be followed upon an application for increase in equipment are jurisdictional, and an increase in equipment permitted without compliance with these requirements is void.
2. The motor transportation statute was designed not for the benefit of motorbus operators, but to serve the public convenience and necessity. Hence a competing carrier which delays a considerable period before complaining of noncompliance by its competitor with the requirements of Sections 614-91 and 614-93, General Code, as to an increase in equipment, has no power thereby to waive such requirements for the state.
ERROR to the Public Utilities Commission.
The instant case arises upon an order of the Public Utilities Commission, which presents in its statement the issues of fact and of law. The pertinent part of the order complained of is as follows:
"This matter comes before the commission on complaint of the Ohio Transit Company against the Central Ohio Transit Company. The Ohio Transit Company possesses a number of certificates which authorize it to transport passengers by motor bus for hire between a number of towns in the state of Ohio; included in these is Certificate No. 40, under which it carries passengers between Lancaster, Ohio, and Athens, Ohio. The Central Ohio Transit Company also operates motor busses between Lancaster and Athens. It does so by virtue of Certificates Nos. 39, 41, 42, 43 and 44. The certificates possessed by both companies were originally granted to individuals upon affidavits and both companies have purchased their respective certificates.
"On the 21st day of January, 1928, the Ohio Transit Company filed complaint against the Central Ohio Transit Company alleging that the respondent was guilty of the following violations:
"First: That it had failed to comply with the order of the Public Utilities Commission under Proceedings No. 4867, which order was dated November 2, 1927, in that it had not desisted from the use of cars of eighteen passenger carrying capacity and returned to the use and operation of cars with a carrying capacity of twelve passengers.
"Second: That the said respondent refused and neglected to confer with the complainant although requested to do so in compliance with the commission's order of November 2, 1927, relative to an arrangement of time schedules for operation between Lancaster and Athens.
"Third: That the respondent is operating between Lancaster and Athens two twelve-passenger busses, two eighteen-passenger busses and six fifteen-passenger busses, although legally authorized to operate only five seven-passenger cars.
"The case came on for hearing before the attorney examiners of the commission and from the record adduced therein the commission makes this finding and order.
"The two busses which the commission found to be in illegal operation on November 2, 1927, were of fifteen-passenger carrying capacity and should have been so rated; however, certain baggage compartments had been removed and the company was actually operating them at that time as eighteen-passenger busses. One of these vehicles was taken from the route in question in accordance with the commission's order. The other was returned to the factory where the baggage compartment was replaced and the front seating arrangement so altered that the bus was to all intents and purpose rerated by the factory as a twelve-passenger car. It might appear that the respondent while observing the spirit of the law has violated the letter, yet the commission does not consider the offense serious enough standing alone to call for revocation of the certificate; however, we have no hesitation in saying that should there have been other matters of complaint which were more serious this act on the part of the respondent might have been sufficiently important going to the aggravation to cause the commission to act otherwise.
"As to the second complaint wherein it is alleged that the respondent has refused and neglected to confer with the complainant in the matter of time schedules, suffice it to say that that charge was disposed of by the commission in Order No. 4867. The commission knowing the status of affairs existing between the Ohio Transit Company and Central Ohio Transit Company anticipated that the two were not likely to have a meeting of minds and provided should they not get together it would proceed to dispose of the difficulty. This it did in the aforesaid order.
"Coming now to the third allegation of the complaint, the commission finds a problem of grave proportion presented. The affidavits under which Certificates No. 39, No. 41, No. 42, No. 43 and No. 44 were issued disclose the fact that on April 28, 1923, each individual was operating only one seven-passenger bus and that some time in June, 1923 each added to his equipment one more seven-passenger car. Through mistake the commission in acting on the said affidavits authorized the operation of two seven-passenger busses under each certificate. By the terms of Section 614-87, G. C., which gives the commission power to grant certificates on affidavit, the only equipment which could have been certificated legally due to the said affidavits, was such physical property as the individuals were in good faith operating on April 28, 1923.
"No application was ever made for increase of equipment under Certificate No. 39.
"Under Certificate No. 41 an application to change equipment was made on November 18, 1925. Notice of the same was given by publications in the Athens Messenger, Athens, Ohio, county seat of Athens county, on November 15, 22 and 29, 1925. The desired change was approved by the commission on December 21, 1925. The commission finds, however, that Certificate No. 41 covers a regular route extending through Athens, Hocking and Fairfield counties and that publication as required by Section 614-91, G. C., and interpreted by the Supreme Court of Ohio in Lake Shore Electric Railway Co. et al. v. Public Utilities Commission of Ohio, 115 Ohio St. 311, 154 N.E. 239, should have been made in papers of general circulation published at the county seat of not only Athens county but Hocking and Fairfield counties as well.
"Under Certificate No. 42 an application for change of equipment was filed on October 27, 1925. Notice was given through the Democrat-Sentinel at Logan, Ohio, county seat of Hocking county, on October 29, November 5 and November 12, 1925. The commission granted the application on November 19, 1925. This commission finds that Certificate No. 42 covers the same route as does Certificate No. 41 and that publication should have been made accordingly in papers of general circulation published at the same county seats.
"Under Certificate No. 43 an application for change in vehicles was filed November 18, 1925, and notice was given through the Athens Messenger on November 11, 15 and 30, 1925. Permission for the change was granted on December 21, 1925. This commission finds that Certificate No. 43 covers the same route as does Certificates Nos. 41 and 42 and that publication should have been made in papers of general circulation published at the county seats of the same counties.
"Under Certificate No. 44 application was made for change of equipment on December 30, 1925. Notice was given in the Logan Republican at Logan, Ohio, on December 31, 1925, January 7 and 14, 1926, and the application was granted by the commission on January 27, 1926. This commission finds that Certificate No. 44 covers the same route as Certificates Nos. 41, 42 and 43 and notice should have been given through papers of general circulation at the county seats of the same counties.
"The commission finds nothing in the record, and nothing of which it should take judicial notice, to indicate that the hereinabove mentioned papers are of general circulation throughout the territory served under the certificates; it is clear that neither Athens nor Logan newspapers are of general circulation in Lancaster where the office of the complainant is located. The said papers are only ordinary county publications and the requirement as to public notice under Section 614-91 being jurisdictional this body has never had the right to authorize any change of equipment whatsoever under these certificates.
"The foregoing facts compel the commission to conclude that the Central Ohio Transit Company under mere color of authority is now, and has been, operating certain unauthorized equipment. It is, therefore,
"Ordered, That the said Central Ohio Transit Company within thirty days hereof desist from the use of all equipment which it is at the present time using and return to the operation of the following cars: One seven-passenger bus under Certificate No. 39; one seven-passenger bus under Certificate No. 41; one seven-passenger bus under Certificate No. 42; one seven-passenger bus under Certificate No. 43; and one seven-passenger bus under Certificate No. 44.
"The decision of the commission turning as it does on the language of the affidavits and the lack of proper publication of applications for change of equipment it is deemed unnecessary to pass on other issues raised by the complainant.
"In so far as the complaint prays for the revocation of certificates of the respondent the same is hereby dismissed."
Mr. D.H. Armstrong, for plaintiff in error.
Mr. Edward C. Turner, attorney general, Mr. A.M. Calland and Messrs. Brown Reed, for defendant in error.
In this case the commission ordered the Central Ohio Transit Company to desist from operating any busses except the seven-passenger busses which the original operators were actually operating on April 28, 1923. This order was entirely proper. The statutory provisions as to application, notice, and hearing apply to increases of equipment as well as to original applications to operate. Columbus Ry. Power Light Co. v. Public Utilities Commission, 113 Ohio St. 634, 150 N.E. 237. An increase permitted by the commission without compliance with these statutory requirements is void. Cincinnati Traction Co. v Public Utilities Commission, 113 Ohio St. 668, 150 N.E. 308; Scioto Valley Ry. Power Co. v. Public Utilities Commission, 115 Ohio St. 358, 154 N.E. 320.
It is claimed that, since the objecting competitor in this case delayed more than two years before complaining of the failure of the Public Utilities Commission to comply with the requirements of Section 614-91, General Code, and Section 614-93, General Code, as to the increase of equipment, the Public Utilities Commission is now precluded from ordering the Central Ohio Transit Company to return to the equipment authorized under its original certificate granted upon affidavit. This contention, however, is untenable. The motor transportation statute was designed, not for the benefit of motor bus operators, but to serve the public convenience and necessity. Whatever might be the effect of delay upon the rights of a competing carrier under the circumstances set out in this record, such delay in objecting to an illegal operation cannot preclude the commission in a proceeding properly raising the question from taking action under the statutes and under the rules of the commission to rectify such illegal operation.
Order affirmed.
MARSHALL, C.J., ROBINSON and MATTHIAS, JJ., concur.
KINKADE, J., not participating.