Summary
In Jones, the PUCO granted a permit to an applicant despite its finding that the existing common carrier service was adequate to satisfy the needs of the shipper, citing Bray, supra, as authority for its decision.
Summary of this case from In re Application of G B Anderson, Inc.Opinion
No. 29296
Decided March 17, 1943.
Public Utilities Commission — Motor transportation — Contract carrier — Mere proof of agreement with shipper insufficient to grant permit — Over protest of existing common carrier — Application to amend permit by adding shipper — Facts to be presented that public interest furthered — Sections 614-83 and 614-109, General Code — Applicant to show also deficiency in existing common-carrier service.
1. Mere proof of an agreement between a contract motor carrier and a shipper for the carriage of materials does not afford a sufficient basis for the granting, by the Public Utilities Commission, of a permit for such carriage over the protest of an existing common carrier who is ready and prepared to meet adequately and satisfactorily the needs of the shipper. ( Bray v. Public Utilities Commission, 139 Ohio St. 409, distinguished.)
2. In order to entitle a contract motor carrier to amend his permit by adding a shipper to his list, sufficient facts should be presented to enable the commission to find that the granting of his application to amend will comport with the declarations of policy contained in Sections 614-83 and 614-109, General Code, enjoining the regulation of the commercial motor vehicle business in an orderly, efficient and economically sound manner in furtherance of the public interest.
3. Ordinarily, it is incumbent upon a contract motor carrier who seeks permission to add a shipper to his list, to show a deficiency in the service of a subsisting and protesting common carrier, that there is a demand for the proffered service, and that the filling of such demand will not conflict with the public interest.
APPEAL from the Public Utilities Commission.
C.R. Jones, of the city of Ravenna, Portage county, Ohio, is the holder of certificate of public convenience and necessity No. 6722, authorizing him, among other things, to transport dump truck commodities for the public generally as a common carrier to and from any point in Portage county.
Chamberlain Peck, a partnership, of the city of Warren, Trumbull county, Ohio, holds contract motor carrier permit No. 2056.
Roy Smith is the owner of the Smith Sand Gravel Company, operating a newly opened sand and gravel pit at the village of Edinburg, in Portage county.
On March 26, 1942, Chamberlain Peck applied to the Public Utilities Commission for authority to amend its permit by, inter alia, adding thereto the Smith Sand Gravel Company as a shipper. This was protested by Jones.
At the hearing before an attorney examiner of the commission on April 21, 1942, it was developed that Chamberlain Peck, owning four dump trucks and having others under lease, solicited and obtained a contract from the Smith Sand Gravel Company for the hauling of sand and gravel from the pit to points within a radius of 50 miles at the rate of 4 cents per ton per mile, with a minimum annual guarantee of $200.
Smith testified that he had had no contact with the protestant Jones, that he knew he was a common carrier and that he would have no objection to using his service.
Jones' son testified that his father had 15 or 20 available dump trucks, which was a sufficient number to take care of the needs of Portage county, and that business was somewhat slow. He also stated that Smith had visited Jones' office in Ravenna and was advised of the activities in which Jones was engaged.
The ultimate finding of the attorney examiner was that the existing common-carrier service was adequate to satisfy the needs of the Smith Sand Gravel Company, but in view of the decision in Bray v. Public Utilities Commission, 139 Ohio St. 409, 40 N.E.2d 666, such fact was of no weight. It was therefore recommended that the application of Chamberlain Peck be granted.
In approving the application, under an order dated June 13, 1942, the commission made no findings of fact and rendered no opinion. Later, in the order denying the protestant Jones a rehearing, the commission cited the Bray case as authority for its action.
Jones appealed to this court from the order permitting Chamberlain Peck to add the Smith Sand Gravel Company to its list of shippers.
Mr. Noel F. George and Mr. John W. King, for appellant.
Mr. Thomas J. Herbert, attorney general, and Mr. Kenneth L. Sater, for appellee.
Appellant states the basic questions arising on the appeal substantially as follows:
1. Does mere proof of an agreement between a contract carrier and a shipper afford a sufficient ground for the granting of a permit by the commission over the protest of an existing common carrier who is ready and prepared to meet adequately and satisfactorily the needs of the shipper?
2. Should there be sufficient facts presented to enable the commission to find that the granting of the application of a contract carrier to add a shipper will comport with the declarations of policy contained in Sections 614-83 and 614-109, General Code, relating to the regulation of commercial motor vehicles in an orderly, efficient and economically sound manner in the furtherance of the public interest?
In our opinion, the first of these question should be given a negative answer and the second an affirmative one.
Under the record in the present case there is substantial evidence tending to show that the protestant, an existing common carrier, is in a position to meet the requirements of the Smith Sand Gravel Company in a suitable manner with the identical type of equipment possessed by Chamberlain Peck. Evidence is lacking that there is any demand for the proposed service on the part of the contract carrier, or that the granting of its application would supply a need for more adequate, economical and efficient service than that which Jones is ready and able to furnish.
In other words, it is ordinarily incumbent on a contract carrier seeking permission to add a shipper to show a deficiency in the subsisting common-carrier service, that there is a call for his proffered service, and that the meeting of such call will not conflict with the public interest.
In our view, the Bray case is not dispositive of the instant controversy. There, the shipper was engaged in a highly competitive business. A common carrier was transporting its products by frequent trips between Crooksville and Sebring, Ohio, in a one and one-half ton truck at a cost of 30 cents per 100 pounds, and refused to procure a truck of greater capacity whereby the transportation cost would be reduced. A nearby contract carrier with a much larger truck entered into an agreement with the shipper to carry its products between the same points at a rate of 19 cents per 100 pounds, and asked the approval of the Public Utilities Commission, which was refused as inimical to the public interest.
Reversing the commission's order, this court held that "in the case of private transportation, a present permit holder should be required to furnish approximately equivalent service before he is entitled by protest to deprive the shipper of a substantially more beneficial contract," unless it clearly appears that a contrary policy is necessary to protect the public interest.
It would therefore seem that the Bray case is distinguishable from the pending proceeding.
On the record before us, we find the order of the commission unreasonable and unlawful. Such order is accordingly reversed and the cause remanded for further investigation and a determination in harmony with the principles announced in this opinion.
Order reversed.
WEYGANDT, C.J., MATTHIAS, HART, BELL, WILLIAMS and TURNER, JJ., Concur.