Opinion
No. 21314
Decided January 16, 1929.
Public Utilities Commission — Motor transportation companies — Order to desist from operating equipment authorized by void order — Not an alteration, amendment or revocation of certificate, requiring notice — Section 614-87, General Code.
An order of the Public Utilities Commission to desist from operating equipment authorized by a previous order of such Public Utilities Commission, which previous order is void because of non-compliance with jurisdictional statutory requirements, does not constitute an alteration, amendment, or revocation of a certificate within the purview of Section 614-87, General Code.
ERROR to the Public Utilities Commission.
The instant case arises upon an order of the Public Utilities Commission, which presents in its statement the issues of fact and of law. The pertinent part of the order complained of is as follows:
"This day it came to the attention of the commission through the record made in the case of The Ohio Transit Company v. The Central Ohio Transit Company (wherein, this day, an order has been promulgated notifying and directing said The Central Ohio Transit Company, within thirty days herefrom, to confine future operations under its Certificates of Public Convenience and Necessity Nos. 39, 41, 42, 43 and 44 to one seven-passenger car under each of such certificates), that said The Ohio Transit, Company, which now holds Certificate of Public Convenience and Necessity No. 40 for the maintenance and operation of a motor transportation company carrying passengers upon and over a regular route, the fixed termini of which (the same as the aforesaid Certificates Nos. 39, 41, 42, 43 and 44) are Lancaster, Ohio, and Athens, Ohio, is illegally furnishing service, under said Certificate No. 40 with two eleven-passenger cars, in that, to wit:
"Certificate No. 40 was duly granted to one O.B. Daniels (and has since been lawfully transferred to said The Ohio Transit Company) upon his affidavit that on April 28, 1923, he was maintaining and furnishing service upon and over said route with one seven-passenger car, and
"That some time in June of 1923, a second seven-passenger car was added to said equipment without application to or authority from this commission as provided by law.
"Whereupon, and it now appearing that said The Ohio Transit Company is maintaining service under said certificate by means of said two eleven-passenger cars aforesaid without having made application to or receiving authority therefor from The Public Utilities Commission of Ohio, and the commission, as aforesaid, having directed the said The Central Ohio Transit Company to return to the use of the equipment which it is legally entitled to use under said Certificates Nos. 39, 41, 42, 43 and 44, the Commission, upon its own motion does find that similar action should be taken with respect to Certificate No. 40 as has, on even date, been taken with respect to said Certificates Nos. 39, 41, 42, 43 and 44. Wherefore, it is
"Ordered, That The Ohio Transit Company be, and hereby it is notified, directed and required, within thirty days from the date hereof, to cease the use, under Certificate of Public Convenience and Necessity No. 40 of two eleven-passenger cars and to return, under said Certificate No. 40, to the use of one seven-passenger car. It is further
"Ordered, That a certified copy of this order be dispatched forthwith to said The Ohio Transit Company."
Messrs. Brown Reed, for plaintiff in error.
Mr. Edward C. Turner, attorney general, and Mr. A.M. Calland, for defendant in error.
The Public Utilities Commission, in its order and finding, found that the only operation over the route of the plaintiff in error legally permitted by the Public Utilities Commission was the operation of one seven-passenger bus. This conclusion was correct. All subsequent increases in equipment after the granting upon affidavit of the certificate of public convenience and necessity were illegal and the orders issued by the commission with respect thereto were void. Columbus Ry., Power Light Co. v. Public Utilities Commission, 113 Ohio St. 634, 150 N.E. 237; Cincinnati Traction Co. v. Public Utilities Commission, 113 Ohio St. 668, 150 N.E. 308; Scioto Valley Ry. Power Co. v. Public Utilities Commission, 115 Ohio St. 358, 154 N.E. 320.
Plaintiff in error claims that it should have been given five days notice and a hearing, under the provisions of Section 614-87, General Code, urging a former order of the commission issued on October 20, 1927, finding that on that date plaintiff in error was authorized to operate two eleven-passenger busses between Lancaster, Ohio, and Athens, Ohio. However, under the facts of this record, Section 614-87, General Code, does not apply. An order of the Public Utilities Commission to desist from operating equipment authorized under a previous order, which previous order is void because of noncompliance with jurisdictional statutory requirements, does not constitute an alteration, amendment, or revocation of the certificate within the purview of Section 614-87. Neither does it fall within the purview of Sections 614-21 and 614-23. These sections are not a part of the Motor Transportation Act, but are a part of the general public utilities statute. They relate to unjust, unreasonable, discriminatory and preferential rates, unjust, unreasonable, discriminatory and preferential practices, and were not enacted to cover the peculiar situation set forth herein.
As the void order of October 20, 1927, emanated from the commission itself, it might have been wise practice for the commission to grant a hearing before issuing the order complained of herein. However, since the order authorizing the extra equipment was void ab initio, it was as if it had never been, and the Public Utilities Commission was justified in issuing a summary order to desist from the illegal operation.
Order affirmed.
MARSHALL, C.J., ROBINSON; and MATTHIAS, JJ., concur.
KINKADE, J., not participating.