Opinion
No. 23613
Decided December 14, 1932.
Public Utilities Commission — Error proceedings to Supreme Court — Finding and order not disturbed unless against manifest weight of evidence — Motor transportation companies — Evidence that private interests subserved, insufficient to require granting certificate — Both public convenience and necessity to be proved — Such proof not dispensed with, by tendering through service, etc. — Inadequacy of existing service not proved by proposing service over virgin route.
1. The court will not disturb the finding and order of the Public Utilities Commission of Ohio unless such finding and order is against the manifest weight of the evidence. ( Lykins v. Public Utilities Commission, 115 Ohio St. 376, 154 N.E. 249, approved and followed.)
2. Evidence that certain private interests may be subserved by the granting of a certificate of necessity and public convenience is not of itself of such persuasive nature as to require the Public Utilities Commission of Ohio to issue such certificate. ( Lima-Toledo Railroad Co. v. Public Utilities Commission, 121 Ohio St. 421, 169 N.E. 445, approved and followed.)
3. Proving public convenience is not enough. Necessity must be proven in addition thereto before the Public Utilities Commission can be required to issue its certificate. ( Canton-East Liverpool Coach Co. et al. v. Public Utilities Commission, 123 Ohio St. 127, 174 N.E. 244, approved and followed.)
4. The tender of through service, later hours of departure and earlier hours of arrival, do not dispense with the proof of public convenience and necessity. ( Lima-Toledo Railroad Co. v. Public Utilities Commission, 121 Ohio St. 421, 169 N.E. 445, approved and followed.)
5. The fact that the proposed service would be conducted over a virgin route, does not tend to prove the inadequacy of the present service over other routes between the same termini. The inadequacy of the present service must be established else there could be no necessity for additional service. ( McLain v. Public Utilities Commission, 110 Ohio St. 1, 143 N.E. 381, approved and followed.)
ERROR to the Public Utilities Commission.
Prior to May 13, 1932, the Continental Freight Forwarding Company of Cincinnati, Ohio, made an application to the Public Utilities Commission of the State of Ohio for a certificate of public convenience and necessity to operate a motor transportation line between Cincinnati, Ohio, and Cleveland, Ohio, over Ohio-United States Route No. 42, for the purpose of carrying freight. On May 13, 1932, the Public Utilities Commission denied this application, on the ground that existing transportation facilities provide and furnish adequate service between said termini and that applicant has not proven that the public convenience and necessity require its proposed service. Applicant excepted to this order, and its exceptions were noted of record.
On June 1, 1932, applicant made an application to the Public Utilities Commission for a rehearing, assigning eight distinct grounds therefor, and on the same day the application for rehearing was denied, and applicant excepted to this ruling.
Petition in error is filed here by applicant to reverse the finding and order of the Public Utilities Commission, claiming in general that the finding and order is arbitrary, unreasonable, and unlawful.
Mr. Herbert Baker, Mr. Coleman Avery, and Mr. D.W. Iddings, for plaintiff in error.
Mr. Gilbert Bettman, attorney general, Mr. T.J. Herbert, Mr. C.T. Lewis, Jr., Mr. Andrew D. Rodgers, Jr., Mr. H.C. Weaver, Mr. J.P. Canney, Mr. W.A. Daugherty, Mr. James W. Huffman, and Mr. John C. Durfey, for defendants in error.
Applicant contends that a certificate should have been issued to it for several reasons, to wit:
(a) There is no certificate covering Ohio-United States Route No. 42;
(b) Ohio-United States Route No. 42 is the shortest route between Cincinnati and Cleveland;
(c) That applicant offers a through route from one terminus to the other;
(d) That it will leave its Cincinnati terminus later and deliver its freight in Cleveland earlier;
(e) That it will make no pick-ups between termini, but handle through freight exclusively;
(f) That there is public demand for such service;
(g) That such service is necessary; and
(h) That such service will inure to the public convenience.
Cincinnati and Cleveland are connected by four lines of steam railroad, viz.: The Baltimore Ohio, the Erie, the Pennsylvania, and the New York Central; by a connecting and co-ordinated truck service furnished by the Cincinnati, Middletown Dayton and the Cleveland, Canton Columbus Trucking Companies; by a through electric interurban service furnished by the Cincinnati Lake Erie and the Lake Shore Electric, and by the service of Railway Express Agency, which conducts its operations both by rail and by air. With these various services available to take care of the demands for public transportation, the Continental Freight Forwarding Company filed its application for a certificate of public convenience and necessity covering a proposed truck operation between Cincinnati and Cleveland. All of the common carriers operating between these two points, either by rail or by highway, appeared as protestants.
Testimony was offered by applicant to prove the necessity for and the public convenience that would be subserved by the granting of the certificate applied for herein.
The court has read this testimony, and it has some probative value; but it is not so convincing to the court as to render the action of the commission arbitrary or capricious, unlawful or unreasonable. The protestants are offering substantial service; not perfect, perhaps, but reasonably adequate to the demands. The fact that the proposed service would be conducted over a virgin route does not in our opinion tend to prove the inadequacy of the present service over other routes between the same termini. The inadequacy of the present service must be established, else there could be no necessity for additional service.
The terms "convenience" and "necessity" constitute two distinct conditions, that must be proven to exist by the applicant, by the greater weight of the evidence, before the machinery of the commission is put in motion; and, while the commission is substantially a fact-finding body, this court will not disturb its findings and orders unless they are against the manifest weight of the evidence.
We see no error in the finding and order of the Public Utilities Commission herein, and it is hereby affirmed.
Finding and order affirmed.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.