Opinion
No. 31809
Decided July 13, 1949.
Public Utilities Commission — Railroad's application to discontinue trains dismissed — Commission dismissed subsequent application to require railroad to restore train operation — Latter order not "final order" in "special proceeding" — Section 12223-2, General Code — Appeal to Supreme Court dismissed.
APPEAL from the Public Utilities Commission.
On May 9, 1947, the Pennsylvania Railroad Company filed with the Public Utilities Commission an application to discontinue passenger trains Nos. 604 and 605 operated between Akron and Columbus. A hearing was held, an attorney examiner of the commission filed his report and thereafter the railroad filed an application to reopen the proceedings and record for the purpose of receiving new and additional evidence of facts occurring since the hearing.
On May 25, 1948, the commission entered an order which (1) overruled the application to reopen the proceedings and record, (2) held well taken the of protestants to dismiss the railroad's application to discontinue the trains and (3) ordered that application dismissed.
On September 8, 1948, the village of Marshallville and others filed in the foregoing proceeding an application for an order requiring the railroad to restore trains Nos. 604 and 605 "to provide the same service and to be of the same consist [ sic] as they were operated on the date of the filing of the application for the discontinuance of the said trains * * * for the * * * reasons (1) that respondent's [railroad's] application, after a full hearing on its merits, was denied" and "(2) that some parts of the train service were abandoned without authority first having been obtained as provided by law."
The commission heard oral arguments and on September 23, 1948, entered an order dismissing the application filed September 8, 1948, the dismissal being on the ground that the commission on May 25, 1948, entered a final order dismissing the application of the railroad to discontinue trains.
On September 30, 1948, the protestants filed an application for rehearing. The railroad filed a motion to dismiss that application for the reason that the order of September 23 was not the final order of the commission and no application for rehearing was filed to the final order of the commission dated May 25, 1948, pursuant to Section 543, General Code.
On October 18, 1948, the commission entered an order dismissing the September 30 application for rehearing for the reason that no rehearing application was filed within the statutory time for objecting to the order of May 25, 1948.
The village of Marshallville filed its notice of appeal to this court from the September 23 order of the commission.
The Public Utilities Commission filed a motion to dismiss the appeal because no application for rehearing was filed within 30 days after the final order of May 25, 1948, and no notice of appeal was filed within 60 days from that date. Sections 543, 547 and 614-43, General Code.
Mr. Ray Lindamood and Messrs. Herbert Dombey, for appellant.
Mr. Herbert S. Duffy, attorney general, and Mr. Kenneth B. Johnston, for appellee.
Counsel for the village by brief state: "The only legal question here involved is whether the commission's order of September 23, 1948, is a final order, and hence appealable."
Such counsel contend the commission on that date entered a "final order" in a "special proceeding" within the meaning of those terms as used in Section 12223-2, General Code.
We are of opinion that the Public Utilities Commission on May 25, 1948, entered a final order in a special proceeding, and find that no application for rehearing was filed within 30 days and no appeal was commenced within 60 days from that final order. The application filed on September 8 in that proceeding did not institute another "special proceeding," and, therefore, the order dismissing that application was not a final order in a "special proceeding."
The motion to dismiss the appeal is sustained and the appeal is dismissed.
Appeal dismissed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.