Opinion
Nos. 40257 and 40258
Decided March 22, 1967.
Motor transportation companies — Transportation of passengers and baggage — Application for certificate of convenience and necessity — Notice and reasonable time to protestants to provide service — Section 4921.10, Revised Code — Statutory requirement not applicable, when — Requested certificate requires new service over new route.
APPEALS from the Public Utilities Commission.
These are appeals from an order of the Public Utilities Commission granting a certificate of public convenience and necessity to David P. White, doing business as Student Charter Service, to operate a motor transportation company between Oxford and Columbus, Ohio.
White made application for the certificate on February 1, 1965. Hearings were conducted, and the Ohio Bus Lines Company and Greyhound Lines, Inc., protested the application.
Ohio Bus Lines operates a transportation service between Oxford and Dayton, and Greyhound Lines operates between Dayton and Columbus. On January 22, 1965, connecting service was made between Ohio Bus Lines and Greyhound Lines at Dayton. On April 9, 1965, these two companies, by agreement between themselves, inaugurated a through-service between Oxford and Columbus via Dayton.
On February 25, 1966, the Public Utilities Commission issued its findings and orders which read in part as follows:
"The commission, being fully advised in the premises, now finds:
"That the applicant has sustained the burden of proving the public convenience and necessity existing for his services in the transportation of passengers and baggage over the proposed route between Oxford and Columbus, Ohio; restricted to the transportation of passengers whose entire ride is between Columbus, Ohio, and Oxford, Ohio, with no pickup or discharge of passengers except in Columbus, Ohio, and Oxford, Ohio.
"That the protestants have failed to show that they are capable of fully serving the needs of the public and their service is thereby inadequate.
"That in view of the highly specialized and limited nature of the authority requested, and since there are no certificated carriers authorized to provide such service over the entire route involved, nor the terminal areas, there is no requirement for the issuance of sixty (60) day orders.
"* * *
"Ordered, that upon the payment of the taxes prescribed by law, and the filing with this commission of the required insurance, tariff and time schedule, certificate of public convenience and necessity No. 10498-Bus be issued to David P. White, d.b.a. Student Charter Service, to establish, maintain and operate a motor transportation company to transport passengers and their baggage upon and over the following route, to-wit:
"Leaving Oxford, Ohio, east on state route 73 to the intersection of state route 4; thence south on state route 4 to the intersection of state route 63; thence east on state route 63 to the intersection of state route 123; thence southeast on state route 123 to the intersection of interstate route 71 (Ohio route 1); thence northeast on interstate route 71 (Ohio route 1) to Columbus, Ohio; and return over the same route.
"Restricted to the transportation of passengers whose entire ride is between Columbus, Ohio, and Oxford, Ohio, with no pickup or discharge of passengers except in Columbus, Ohio, and Oxford, Ohio."
Appellants, Ohio Bus Lines and Greyhound Lines, filed motions for rehearing which were denied. Subsequently, appeals were lodged in this court.
Messrs. Porter, Stanley, Treffinger Platt and Mr. James J. Hughes, Jr., for appellant in case No. 40257. Messrs. Brown Gettler and Mr. Jonas B. Katz, for appellant in case No. 40258.
Mr. William B. Saxbe, attorney general, Mr. J. Philip Redick and Mr. Langdon D. Bell, for appellee.
The primary question raised by appellants is whether under Section 4921.10, Revised Code, they should have been given a reasonable time to provide the service in question before a new certificate was granted.
Section 4921.10, Revised Code, provides in part:
"On a finding by the commission that any motor transportation company does not give convenient and necessary service in accordance with the order of such commission, such motor transportation company shall be given a reasonable time, not less than sixty days, to provide such service before any existing certificate is canceled or a new certificate granted over the route or for the territory mentioned in the finding and order of, or hearing before, the commission."
It is clear that this section applies if the new certificate relates to the same route or territory serviced by appellants. The facts reveal that the certificate in question does not cover an existing route but instead provides for a new transportation service over a new route. Neither of the appellants provides a direct service from Oxford to Columbus and neither is authorized to do so. Ohio Bus Lines under its certificate can provide service only from Oxford to Dayton, and Greyhound Lines only from Dayton to Columbus. It is only by virtue of the contract between appellants that passengers are not compelled to change buses at Dayton. Thus, the service now rendered by appellants is not direct but, due to their certificates, is by way of Dayton.
Appellant Greyhound Lines, Inc., contends that "there is no requirement that any one protestant serve the whole of the route or all of the termini before a 60-day order should issue." Central Ohio Transit Co. v. Public Utilities Commission, 115 Ohio St. 383, and Columbus, Delaware Marion Electric Co. v. Public Utilities Commission, 116 Ohio St. 92, are cited for this proposition. However, those cases involved service along a single route, which, as is shown above, is not the case here.
Since the facts reveal that neither the same route nor the same territory is involved in this order, the quoted portion of Section 4921.10, Revised Code, is not applicable and no notice was required to be given to appellants. See, also, D.G. U. Truck Lines, Inc., v. Pub. Util. Comm., 4 Ohio St.2d 113.
It must be kept in mind that "* * * the primary consideration in the granting of * * * certificates of convenience and necessity, is the best service to the public." H. K. Motor Transportation, Inc., v. Public Utilities Commission, 135 Ohio St. 145, 153. The new service permitted by the certificate involved here obviously fulfills such a purpose, a better service to the public.
In cases such as this, it is not the province of this court to examine the evidence for the purpose of deciding if we would arrive at the same conclusion as did the commission, but only to see if evidence existed to support the finding of the commission. Ohio Steel Foundry Co. v. Public Utilities Commission, 164 Ohio St. 9.
We are satisfied that the commission's order is supported by the evidence, and that, therefore, the order is neither unreasonable nor unlawful. Such order is, therefore, affirmed.
Order affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and BROWN, JJ., concur.