Opinion
No. 26872
Decided July 20, 1938.
Public Utilities Commission — Motor transportation companies — Certificate of public convenience and necessity — Route through non-contiguous municipalities — Section 614-84(a) (2), General Code — Jurisdiction of commission — Proposed route not a sham and fraud — No existing authorized transportation service — Shuttle bus operation by street railway company — Consent of municipalities necessary to motor transportation, when — Section 614-86, General Code — Financial condition of applicant and sufficiency of existing transportation facilities.
APPEAL from the Public Utilities Commission.
This case comes before the Supreme Court upon appeal from a final order of the Public Utilities Commission of Ohio wherein the Cleveland-University Heights Bus Lines, Inc., a corporation existing under the laws of Ohio, was applicant for a certificate of convenience and necessity to operate as a motor transportation company and as a common carrier of passengers between fixed termini and over regular routes between the city of Cleveland and the village of Beechwood. The appellants and protestants, The Cleveland Railway Company and the city of Cleveland, together with The Cleveland Interurban Railway Company, opposed the application before the commission. After a hearing of the evidence, the Public Utilities Commission granted the certificate as applied for. A motion to dismiss the application for want of jurisdiction of the commission to hear the case was filed at the commencement of the hearing and overruled, as was an application for rehearing which was filed by The Cleveland Railway Company.
The routes applied for by the Cleveland-University Heights Bus Lines, Inc., ran through a portion of the city of Cleveland and through, in order named, the city of Cleveland Heights, the village of University Heights, the city of Shaker Heights, and had its eastern terminal in the village of Beechwood. The western terminal was at the junction of West boulevard and Madison avenue in the city of Cleveland. The city of Cleveland is joined on the east by the city of Cleveland Heights, which is bounded on the east, in part, by the village of University Heights and on the south by the city of Shaker Heights. University Heights is bounded on the east by the village of Beechwood and on the south by Shaker Heights. Shaker Heights is immediately contiguous to Beechwood and Beechwood is also immediately contiguous to University Heights.
The route for which the Cleveland-University Heights Bus Lines, Inc., made application extended 15.2 miles within the city limits of Cleveland; 3.2 miles within the limits of Cleveland Heights; 3.8 miles within the limits of University Heights; 0.2 mile within the village of Shaker Heights; and 0.5 mile into the village of Beechwood.
The application for the certificate was filed by the appellee October 26, 1937. On November 29, 1937, The Cleveland Railway Company commenced operation of a shuttle bus from the end of its Fairmont car line through a portion of Shaker Heights, and into University Heights to John Carroll University. On December 6, 1937, The Cleveland Railway Company proposed to transfer its shuttle bus operation so as to run from a point within University Heights and near John Carroll University to the end of its Cedar avenue car line, and the Cedar Road Express Bus Line at the intersection of Cedar road and Taylor road. This route would have eliminated the necessity of passing through Shaker Heights. However, neither of these bus services provided any service for the village of Beechwood.
The hearing by the examiner for the Public Utilities Commission was held December 15, 1937. At that time the shuttle bus to the end of the Fairmont avenue line was in operation. The proposed route to the junction of Cedar road and Taylor road went into full operation December 30, 1937, after the order granting the certificate, which was made December 22, 1937, and before the application for a rehearing was denied, which was January 5, 1938.
The finding of the commission was as follows:
"That there is no existing authorized public transportation company serving University Heights or Beechwood, Ohio, and
"That the public convenience and necessity require the services proposed by the applicant."
The contentions of the appellants are that the existing service to the communities is adequate, or will be adequate, and that there is no necessity for the service proposed to be certificated, and that the commission had no jurisdiction, because the bus company had extended its service a single city block into Beechwood, in an attempt to give the Public Utilities Commission jurisdiction and, the service being a sham and a fraud, this was ineffective to confer the authority. Finally, The Cleveland Railway Company contends that the service it is now giving the village of University Heights is lawful and is not within the jurisdiction of the commission, although it runs through the city of Cleveland, the city of Cleveland Heights and the village of University Heights, and that the commission erred when it found that "there is no existing authorized public transportation company serving University Heights * * *." (Italics ours.)
Mr. Henry S. Brainard and Mr. Edward Blythin, for appellant, the city of Cleveland.
Messrs. Squire, Sanders Dempsey, for appellant, The Cleveland Railway Company. Mr. Herbert S. Duffy, attorney general, Mr. W.W. Metcalf and Mr. W.C. Blackmore, for appellees.
The principal contention of the appellants is that the Public Utilities Commission has no jurisdiction of this matter for the reason that the portion of the proposed route extending easterly of the territorial limits of University Heights is a sham, and if that portion of the route is excluded from consideration the provisions of Section 614-84 ( a) (2), General Code, preclude the order made by the Public Utilities Commission. The appellants thereby concede that if the extension of the service to Beechwood is not a sham and a fraud, the route covered by the proposed certificate would not be within a group of municipal corporations, each contiguous to some one municipal corporation, and the Public Utilities Commission would have jurisdiction of the route and operation. The record shows that there were perhaps fifty residents living within one-half mile of the part of Beechwood village reached by the proposed bus line, but the record also shows the need of some sort of transportation facilities. In view of the fact that The Cleveland Railway Company has not yet extended service into the village, it is not in position to say that extension of service by others is a sham and fraud, and the finding of fact by the Public Utilities Commission against the charge of sham and fraud should not be disturbed in the absence of a showing that the finding is manifestly against the weight of the evidence. The motion to dismiss because of lack of jurisdiction was properly overruled upon authority of City of Cleveland v. Public Utilities Commission, 130 Ohio St. 503, 200 N.E. 765.
It is contended that the examiner was wrong in holding, as he did, that there was no authorized service to the community and that the order of certification issued by the commission was wrong wherein it stated "that there is no existing authorized public transportation company serving University Heights or Beechwood, Ohio." The report of the attorney examiner is in part as follows: "The railway company for the past two weeks, since the filing of this application, has been providing free service from University Heights to its eastern terminus in Cleveland Heights and is proposing to extend its service to University Heights with a transfer. Protestants' Exhibit I outlines this proposal. Proposed service has no authority from this commission and no authority is sought, although it is clearly under the jurisdiction of the commission, in that Cleveland and University Heights are not contiguous municipalities."
It is conceded by The Cleveland Railway Company that it secured the permission of the Mayor of Shaker Heights to operate its temporary bus line into University Heights. Fairmont boulevard runs through Shaker Heights and the shuttle bus in operation at the time of the decision of the commission was connecting with the Fairmont boulevard street car line at Canterbury road in Cleveland Heights. Under the rule set forth in City of Cleveland v. Public Utilities Commission, supra, The Cleveland Railway Company at that time was operating transportation service subject to the jurisdiction of the Public Utilities Commission, since it ran from Cleveland through Cleveland Heights, Shaker Heights and University Heights. It follows from these facts that at the time of the decision the commission was correct when it said there was no "authorized public transportation company serving University Heights or Beechwood."
It is further contended that at the time of the denial of the application for a rehearing, The Cleveland Railway Company was giving service from Cleveland to University Heights through Cleveland Heights, and that this service, passing as it did through a single municipality and others immediately contiguous to it, was lawful and should have been so considered at the time of the denial of the application for a rehearing.
The commission at the time of the rehearing again considered all questions previously presented, including the fact that the railway company was negotiating with the village of University Heights for a franchise agreement to furnish the village bus connections to its Cedar avenue line. But it is significant and decisive fact that such plan did not provide service into the village of Beechwood, and further, since the commission had considered in the original application the need for transportation into Cleveland from Beechwood, there does not appear to be any abuse of discretion on the part of the commission in denying the application for rehearing.
Attention is directed to the restrictions expressly imposed by Section 614-86, General Code, as follows: "* * * no motor transportation company operating under a certificate of convenience and necessity, shall carry persons whose complete ride is wholly within the territorial limits of a municipal corporation, or within such limits and the territorial limits of municipal corporations immediately contiguous thereto, except with the consent of such municipal corporation or municipal corporations."
The question raised as to the financial condition of the applicant and the sufficiency of present transportation facilities is purely one of fact and, as stated in the case of City of Cleveland v. Public Utilities Commission, supra, "As to these questions, both being questions of fact, this court has many times held that it will not substitute its judgment for that of the Public Utilities Commission and will not disturb its findings unless they are against the manifest weight of the evidence." However, the evidence contained in the record amply sustains the findings and conclusions of the commission in these respects.
Order affirmed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, MYERS and GORMAN, JJ., concur.