Opinion
No. 80-16
Decided June 25, 1980.
Public Utilities Commission — Application for Certificate of Public Convenience and Necessity — Tariff included — Certificate issued — R.C. 4909.18 — Subsequent amended proposed rates rejected — Order reasonable and lawful, when.
APPEAL from the Public Utilities Commission.
On March 31, 1978, Public Utility Service, Inc., appellant herein, filed an application for a Certificate of Public Convenience and Necessity (certificate) with the Public Utilities Commission (commission) pursuant to R.C. 4933.25. Appellant sought to engage in the business of constructing, maintaining, and operating a water-works system in Violet Township, Fairfield County. In accordance with the requirements of Ohio Adm. Code 4901:1-15, the application included appellant's proposed rates, rules and regulations. The proposed rate or tariff was a metered rate of $1.45 per customer per month per 1,000 gallons of water used. This same rate was also set forth in appellant's publication of notice of application.
A hearing was held on the matter on July 6, 1978. On June 6, 1979, the commission issued its opinion and order granting the requested certificate. The certificate was issued to appellant on June 26th. On June 29, 1979, appellant filed a second set of proposed rates, rules and regulations. After some discussion of this second filing, appellant modified these proposals. On September 4, 1979, appellant filed an amended version of the proposed rates. By entry of November 21, 1979, the commission rejected the proposals of June 29th and September 4th since they did not conform with the tariff filed with the application for the certificate.
Appellant's motion for a rehearing was denied by the commission on December 27, 1979. The commission also ordered appellant to file a tariff within ten days which would conform with that submitted in its certificate application.
The cause is now before this court on an appeal as of right.
Messrs. Lucas, Prendergast, Albright, Gibson, Newman Gee, Mr. Rankin M. Gibson and Mr. Howard B. Abramoff, for appellant.
Mr. William J. Brown, attorney general, Mr. Marvin I. Resnik and Mr. David M. Neubauer, for appellee.
Appellant is a water-works company, as defined in R.C. 4905.03(A)(8), and a public utility, as defined in R.C. 4905.02. As a water-works company, appellant is subject to the requirements of R.C. 4933.25 and the regulations promulgated thereunder. Ohio Adm. Code 4901:1-15 is a rule validly promulgated by the commission in accordance with statutory requirements and enumerates the required exhibits to be filed with a certificate application.
R.C. 4933.25 provides, in part:
"No***water-works company established or expanding after October 2, 1969 shall construct, install, or operate***water distribution facilities until it has been issued a certificate of public convenience and necessity by the public utilities commission. The public utilities commission shall adopt rules prescribing requirements and the manner and form in which***water-works companies shall apply for a certificate of public convenience and necessity."
Appellant, a public utility as defined by law, was also subject to the requirements of R.C. 4909.18 at the time its certificate application was filed. R.C. 4909.18 provides, in pertinent part: "If the commission determines that such application is not for an increase in any rate***the commission may permit the filing of the schedule proposed in the application and fix the time when such schedule shall take effect. If it appears to the commission that the proposals in the application may be unjust or unreasonable, the commission shall set the matter for hearing***."
Appellant's contention that the above-quoted language imposes a mandatory duty on the commission to permit the filing of its June 29th rate schedule is not well-taken. R.C. 4909.18 deals with the rate proposed in the application and not the filing of a second or later-proposed rate schedule.
It is to be noted that R.C. 4909.18 was amended, effective September 1, 1976. Prior to the amendment, the statute stated that "***the commission shall permit the filing of the schedule proposed in the application***." We held that this former language imposed a mandatory duty on the commission. Ohio Bell Telephone Co. v. Pub. Util. Comm. (1969), 17 Ohio St.2d 45; Cinnamon Lake Utility Co. v. Pub. Util. Comm. (1975), 42 Ohio St.2d 259. We recognize that the General Assembly intended to abrogate this mandatory duty by the 1976 amendment.
The commission states in its December 27th entry: "The first tariff which was filed with the Application for a Certificate on March 31, 1978, was given implicit approval by this commission***in its Opinion and Order dated June 6***. Following commission approval, Public Utility Service merely had to file new copies of that tariff with this commission***. Instead Public Utility Service filed a second tariff in which it had made various changes. Such a filing is improper***."
For the foregoing reasons, we affirm the order of the commission as being reasonable and lawful.
Order affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.