Opinion
No. 28072
Decided July 24, 1940.
Public Utilities Commission — Motor transportation companies — Certificate of public convenience and necessity — Jurisdiction — Operation between three contiguous municipalities exempt — Section 614-86, General Code.
APPEAL from the Public Utilities Commission.
The Public Utilities Commission issued a citation to The Cleveland Railway Company to show cause why an order should not be issued to require the company to cease and desist from operating or attempting to operate a motor transportation company service until a certificate of public convenience and necessity had been obtained from the commission.
During a hearing it was stipulated that "The Cleveland Railway Company under franchises from the three cities involved, to wit, Cleveland, Cleveland Heights and University Heights, operates a bus line from Cleveland to University Heights and reverse; and University Heights is immediately contiguous to Cleveland Heights on the east and Cleveland is immediately contiguous to Cleveland Heights on the west and the route is through these three municipalities."
The commission issued an order reading:
"That said The Cleveland Railway Company be, and hereby it is, notified, directed and required forthwith to cease and hereafter to refrain from operating such motor transportation service, to wit, from a point in the city of Cleveland, Ohio, to and through the city of Cleveland Heights, Ohio, to a point in the village of University Heights, Ohio, until and as such operation and service has been lawfully certificated by this commission."
An application for rehearing was filed by the company and the municipalities aforenamed and a rehearing was denied by the commission.
Appeal was perfected to this court by the company and the municipal corporations.
Messrs. Squire, Sanders Dempsey, Mr. H.J. Crawford and Mr. Frank Harrison, for appellant, The Cleveland Railway Company.
Mr. Henry S. Brainard, director of law, and Mr. Edward Blythin, for appellant, city of Cleveland.
Mr. G.E. Hartshorn, director of law, for appellant, city of Cleveland Heights.
Mr. Earl W. Aurelius, for appellant, village of University Heights.
Mr. Thomas J. Herbert, attorney general, and Mr. Kenneth L. Sater, for appellee.
The present controversy involves the interpretation of those portions of Section 614-84, General Code, which read:
"( a) The term 'motor transportation company,' or 'common carrier by motor vehicle,' when used in this chapter, shall include, and all provisions of law regulating the business of motor transportation, the context thereof notwithstanding, shall apply to every corporation, * * * when engaged, or proposing to engage, in the business of transporting persons or property, or both, or of providing or furnishing such transportation service, for hire * * * for the public in general, in or by motor propelled vehicles of any kind whatsoever, * * * over any public highway in this state; provided, however, that the term 'motor transportation company' as used in this chapter shall not include any * * * company or corporation, wherever organized or incorporated: * * *
"(2) In so far as they own, control, operate or manage a motor vehicle or motor vehicles used for the transportation of persons or property, or both, and which are operated exclusively within the territorial limits of a municipal corporation, or within such limits and the territorial limits of municipal corporations immediately contiguous thereto * * *." (Italics ours.)
It is the contention of the appellants that the motor coach line in question is not subject to the jurisdiction of the Public Utilities Commission since the operation is "exclusively within the territorial limits of a municipal corporation [Cleveland Heights], or within such limits [Cleveland Heights] and the territorial limits of municipal corporations [University Heights and Cleveland] immediately contiguous thereto [Cleveland Heights]."
The appellants maintain that the exemption as expressed by the legislative language applies and the Public Utilities Commission does not have jurisdiction of an operation whenever a route is within a group of municipalities, each contiguous to one — or any one — municipality of the group. It is the position of the appellants that such an exemption is not governed either (1) by the principal office or main properties of the corporation, (2) by the largest municipal corporation in a group, (3) by the municipal corporation which is a terminus of a motor bus line, (4) by the fact that every municipal corporation in the group is not contiguous to every other municipality therein, (5) by contiguity "on the route," or (6) by whether the transportation company has franchises from the municipalities, although in the present proceeding it is stipulated they have so consented.
Counsel for the commission insist that this court rejected the same propositions when advanced by appellants in the two cases entitled City of Cleveland v. Public Utilities Commission, 130 Ohio St. 503, 200 N.E. 765 (the Bedford case), and 134 Ohio St. 216, 16 N.E.2d 339 (the Beechwood case). It is the position of the appellee that the word "immediately" is controlling and that in ascertaining contiguity Cleveland is the key city and not Cleveland Heights. It is the claim of the commission that in the case at bar Cleveland is the basis of municipal exemption and that immediate contiguity of the municipalities is determined with reference to that point and not to the city or village which by coincidence happens to be in the center of a particular motor bus operation.
In the so-called Bedford case, supra, this court had before it an appeal by The Cleveland Railway Company and the city of Cleveland challenging the jurisdiction of the commission to certificate a motor bus operation through the municipalities of Cleveland, Garfield Heights, Maple Heights and Bedford. Stated in an inverse order, this court in the syllabus (1) upheld the constitutional authority of the commission to grant the certificate and fix the terminus in the city of Cleveland without its consent, (2) declared the policy of subordinating the rights of municipalities to regulate motor transportation to the authority granted the commission and (3) affirmed the action of the commission in granting the certificate without the consent of the municipal corporations as they were not all immediately contiguous, the non-contiguity of Bedford and Cleveland being specifically referred to in the syllabus.
In the so-called Beechwood case, supra, the principal contention revolved around whether the extension of the motor bus route eastward from University Heights was a sham and it was conceded that the commission would have jurisdiction if the route extended through Cleveland, Cleveland Heights, University Heights and into Beechwood. This court sustained the jurisdiction of the commission over the operation.
In the Bedford and Beechwood cases this court had under consideration the question of certification of operations between four municipalities. We now have before us an operation between only three municipalities. The reasoning applied to sustain the authority of the commission in those two proceedings applies with equal force in the present proceeding to exempt the operation here involved.
Since the commission did not have jurisdiction, its order is reversed.
Order reversed.
DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.
In the Bedford and Beechwood cases this court had under consideration the question of certification of operations among four municipalities. The authority of the commission to fix a terminus under paragraph ( c) of Section 614-84, General Code, for an operation among only three municipalities was not considered or decided. That paragraph clearly vests the commission with authority to determine whether an operation is between fixed termini. Although the commission in this proceeding did not supplement its order with the reasons therefor, it is evident from the stipulation and the order that the commission considered the city of Cleveland as a terminus. Exhibits submitted during the hearing compel the conclusion that the western and eastern termini are in Cleveland and University Heights respectively. Therefore, the order of the commission was neither unlawful nor unreasonable and should be affirmed.