Opinion
Nos. 27976, 27977 and 27978
Decided April 9, 1941.
Public Utilities Commission — Motor transportation companies — Certificates — Public convenience and necessity established — Sixty-day provisions for improving service by existing operator — Sections 614-87 and 614-87b, General Code — Legal capacity of applicant for certificate — Section 614-53, General Code — Applicant as motor transportation company — Sections 614-84 and 614-103, General Code.
APPEALS from the Public Utilities Commission.
These three appeals are from orders of the Public Utilities Commission granting regular route certificates of public Commission and necessity to Hill Transfer Company, Wells Transfer Company and James J. Harnett, doing business as Harnett Cartage, to transport property over Springboro pike between Dayton, Ohio, and the Frigidaire plant which is approximately 2 1/2 miles south from the city limits of Dayton and in or north of the unincorporated village of Moraine City. None of the three applications filed with the Public Utilities Commission designated Moraine City as a terminus, but all three set forth a southern terminus in the vicinity of the Frigidaire plant, to the south of which state route No. 741, as a continuation of Springboro pike, and U.S. route No. 25 intersect.
At the hearing on the applications the C. C. C. Highway, Inc., Commercial Motor Freight, Inc., C. D. Motor Delivery Company and Continental Freight Forwarding Company appeared as protestants. Each of these companies was certificated over U.S. route No. 25 and served the Frigidaire plant, Moraine City and Dayton. The Frigidaire plant is located 1200 to 1500 feet from route No. 25.
The record discloses that John G. Hill had been in the trucking business in Dayton and had rendered pick-up-and-delivery or peddle service to and from Dayton and Frigidaire plant since its construction in 1914 or 1915. Upon advice of representatives of the Public Utilities Commission, he organized the Hill Transfer Company which applied for a certificate of public convenience and necessity to operate one 2-ton and two 2 1/2-ton trucks.
It also appears that Claude W. Wells, who had been operating as a common carrier under a trade name, upon similar advice, organized the Wells Transfer Company and applied for a certificate to operate a 1 1/2-ton truck in intrastate and interstate transportation.
Both of these haulers had rendered daily service via Springboro pike between Dayton and the Frigidaire plant. Both sought certificates in order to continue the service which for some time had been rendered by them to connecting interstate carriers in Dayton.
Hill and Wells qualified their stock through the Division of Securities instead of through the commission under Section 614-53 et seq., General Code. During the course of the hearing Wells agreed to submit his corporation, stock issues and financial transactions to the commission for inspection and approval.
Harnett had been operating between Dayton and the Frigidaire plant since 1926 in the exclusive employment of two certificated interstate common carriers, having no contract with any private or manufacturing company. He too furnished pick-up-and-delivery service in Dayton but transported only occasionally for the general public. He dedicates the 1 1/2-ton tractor and 3-ton semi-trailer described in his application to the service of the two common carriers only.
All three applicants expressly limit their proposed service and operations to the Frigidaire plant over Springboro pike. Neither seeks permission to operate over U.S. Route No. 25 and neither proposes to inaugurate a new service or competition.
The applications of the Hill and Wells transfer companies were heard jointly and that of Harnett separately.
The testimony consisted mainly of that by an assistant traffic manager of the Frigidaire, who emphasized the necessity of service to the plant by both applicants and protestants; of that by representatives of the interstate connecting carriers at Dayton for a continuation of the existing service by the applicants; and of that by representatives of some of the protestants, who established that their companies had served the Frigidaire plant, had adequate equipment and had received neither complaint as to service rendered nor request for additional service.
After those hearings, the commission issued an order in each proceeding finding that public convenience and necessity required the services of the three applicants and that protestants' service was not adequate, giving protestants 60 days to provide the additional service proposed and reserving further jurisdiction.
A report was filed by appellant, Commercial Motor Freight, Inc., setting forth a special record of all requests by and service rendered to the Frigidaire plant. The report also detailed the equipment which appellant had available. Appellant further set forth that it could have rendered better service if applicants had not been permitted to continue operations during the 60-day period.
Thereafter the commission issued orders finding that the protestants had not expanded their operations to meet the demand and directed that certificates of public convenience and necessity be issued to the respective applicants to operate between Dayton and the Frigidaire plant via Springboro pike.
The appellant moved the commission to enter a finding of fact, stating wherein its service was not reasonably adequate and wherein such service had not been expanded to meet public demand. A second motion was made, asking a rehearing for the reason that the findings and orders of the commission were unreasonable and unlawful for stated reasons. This second motion was granted and a rehearing of the three proceedings was had as to the matters and things decided and determined by the order last stated herein.
More than a year later, the commission issued an order overruling appellant's motion asking for detailed findings, for the reason that appellants' report made no statement of any additional service, if indeed there was any, established by virtue of the commission's original order, and for the further reason that the commission had found that appellant had not expanded or increased its service as the commission had found to be necessary. The commission further found that public convenience and necessity required the services proposed to be rendered by the three applicants and reaffirmed and readopted its former order thereon.
A second motion for rehearing was denied and appeal was taken only by Commercial Motor Freight, Inc., from each of the three orders granting certificates.
Mr. E.J. Shover, for appellant.
Mr. Thomas J. Herbert, attorney general, and Mr. Kenneth L. Sater, for appellee.
The assignments of error will be summarized and decided under the following questions:
1. Did applicants establish actual necessity and public convenience?
The record is replete with testimony proving both. The doctrine of estoppel pronounced in Liberty Highway Co. v. Public Utilities Commission, 128 Ohio St. 586, 193 N.E. 407, applies to appellant.
2. Were only private interests involved, since the Frigidaire plant is the sole shipper concerned?
It is claimed that the commission failed to follow the principles announced in McLain v. Public Utilities Commission, 110 Ohio St. 1, at page 5, 132 N.E. 381; Continental Freight Forwarding Co. v. Public Utilities Commission, 126 Ohio St. 161, 183 N.E. 790; and Lima-Toledo Rd. Co. v. Public Utilities Commission, 121 Ohio St. 421, 169 N.E. 445. The facts in those cases readily distinguish them from the established facts in the present controversy.
3. Did the commission observe the 60-day provisions of Sections 614-87 and 614-87 b, General Code?
The long-time operations by the applicants and the unusual facts bring these proceedings within the reasoning applied in affirming the order of the commission in the case of Gilbert, d. b. a. Dayton-Xenia-Wilmington Truck Line, v. Public Utilities Commission, 131 Ohio St. 392, 3 N.E.2d 46.
4. Were the applicant corporations without legal capacity due to noncompliance with Section 614-53 et seq., General Code?
This contention is comparable to that considered and decided in Cincinnati Traction Co. v. Public Utilities Commission, 113 Ohio St. 668, at 676, 150 N.E. 308. It might be observed further that the record does not disclose a disposition upon the part of applicants to defy the orders of the commission.
5. Was the applicant Harnett a motor transportation company?
Counsel for appellant in his brief sets forth provisions of Sections 614-84 and 614-103, General Code, without citation of authority or recitation of facts other than those set forth upon the second question above. Counsel for appellant does not discuss Breuer v. Pablic Utilities Commission, 118 Ohio St. 95, 160 N.E. 623 (which holds in the first paragraph of the syllabus that it is a question of fact whether an operator is a common carrier and is carrying on his business in that capacity), or Larkin, d. b. a. Larkin Motor Freight Terminal, v. Public Utilities Commission, 124 Ohio St. 554, 180 N.E. 54, both of which cases apply to the instant proceedings upon the question of common carrier.
Denial of equal protection and deprivation of property without due process, contrary to the federal and state Constitutions, are assigned but not briefed.
We are of opinion that the orders of the commission are neither unlawful nor unreasonable and they are therefore affirmed.
Orders affirmed.
WEYGANDT, C.J., WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
TURNER and BETTMAN, JJ., not participating.