Opinion
No. 27864
Decided December 31, 1940.
Public Utilities Commission — Private contract carrier permit — Application to amend unaccompanied by affidavit giving rates and pertinent information — Sections 614-107 and 614-109, General Code — Statutory requirements not indefinite, uncertain or irreconcilably contradictory — Writ of mandamus denied to compel commission to file application.
IN MANDAMUS.
This is an original action in mandamus brought by the relator, Garry Motor Lines, Inc., of Akron, Ohio (the owner and holder of permit No. 941, permitting haulage by it on the highways as a contract or private motor carrier), seeking to compel the respondents, the Public Utilities Commission of Ohio and George McConnaughey, R.D. Williams and Dennis F. Dunlavy, commissioners, to file, docket, consider and approve a contract entered into between the relator and Paramount Distillers, Inc., of Cleveland, Ohio, on or about September 25, 1939.
To the amended petition of relator the respondents filed an answer. To the latter pleading the relator filed a general demurrer.
It appears from the amended petition that, after the haulage contract referred to above was entered into, relator herein, in accordance with Section 614-104 et seq., General Code, presented to the respondents an application to amend its permit, No. 941, by adding such contract; that there was attached to the contract an affidavit, a copy of which is attached to the amended petition as in exhibit; that the respondents have refused and continue to refuse to "file, docket, consider and approve" such application "unless and until a certain affidavit has been filed with said application, and a public hearing held thereon"; and that such "affidavit as required by the respondents provides that the rates and other pertinent information contained in the contract be incorporated therein."
The relator further avers "that the pertinent terms of said contract are in nowise charged with public interest, that the rates provided for therein are not those applicable to the general transport of freight by motor vehicle; that under and in accordance with the provisions of Section 614-109 of the General Code of the state of Ohio, as amended, private contract haulers' contracts must be kept for the exclusive use and inspection of the commission in the performance of its duties; that the disclosure of the terms of relator's contract would deprive the relator of valuable property rights without due process of law, and would cause this relator great and irreparable loss, for which it has no adequate remedy at law."
The copy of the affidavit attached to the petition as an exhibit does not contain information as to rates or compensation.
The answer of respondents admits, inter alia, "that they have refused and do refuse to accept for filing and docketing relator's application unless and until it is accompanied by the affidavit and statement, required by defendants' rule of practice, setting forth the rates and financial consideration of the contract on which said application is based."
The admissions of the answer are followed by a general denial as to the remaining allegations.
For a second defense the pleader sets forth verbatim Sections 614-107 and 614-109, General Code (effective August 8, 1939), and then avers that the respondents have prepared "P. C. form 301-a" which is to be filed by applicant for a contract motor carrier permit (or modification thereof) with his application; that "P. C. form 301-a, is to be filled out, signed and sworn to by the person, firm or corporation employing as a contract motor carrier the applicant to whose application said affidavit is to be attached, and is to be accompanied by a statement, designated as exhibit A, setting forth the full compensation and financial basis therefor, which affiant employer will pay such applicant if its application is granted by defendant commission"; and that the affidavit and statement when filed with such an application "are detached therefrom, kept in a file made available to no one except defendants, their agents and employees, and are brought forth where others may see or examine them only at the hearing on the application which they support."
Respondents further aver that relator did not present with its application either P. C. form 301-a or exhibit A but merely filed "a purported P. C. form 301-a designated in its second amended petition as exhibit C and did not attach to it such exhibit A herein above described."
Mr. Joseph W. Kennedy, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. Kenneth L. Sater, for respondents.
Two questions are raised by the contentions of relator: (1) Are the provisions of House Bill No. 383 (Sections 614-84, 614-92 a, 614-105, 614-107, 614-109 and 614-111, General Code), effective August 8, 1939, so indefinite, uncertain and irreconcilably contradictory in law as to render that act invalid? and (2) was the Public Utilities Commission justified in refusing to permit relator to file its application for authority to amend its permit, No. 941, by adding thereto a contract for private hauling entered into between itself and the Paramount Distillers, Inc?
Are the provisions referred to indefinite, uncertain and irreconcilably contradictory?
After the private motor carrier gets his permit to operate, and complies with its terms and the order by which it was granted, he cannot, "substitute, increase or decrease the persons, firms or corporations" who have previously entered into contracts with him or change existing contracts without approval by the commission. Section 614-111, General Code. The application "to substitute or increase" employers is governed by the provisions covering an original application for a permit. The contract must accompany the application (Section 614-107, General Code) and "shall be kept by the commission in a separate file, for the exclusive inspection and use by the commission in the performance of its duties." Section 614-109, General Code.
Relator complains that the contract is required to be kept secret and yet may be used in a public hearing on the application; therefore, it is urged, the provisions are irreconcilable. These provisions, being in pari materia, must be construed together, and mean simply that the contract shall be on file as required only when not in use by the commission at hearings or otherwise. The provisions are not contradictory.
An examination of the provisions of House Bill No. 383 as a whole discloses that they are reasonably certain and not invalid for indefiniteness.
Was the Public Utilities Commission justified in refusing to file the application?
The reason the commission gave for refusing was that its rule of practice required that the application be accompanied with an affidavit containing rates and other pertinent information.
The commission sets out that this affidavit which is to be signed by the employer of the contract carrier is designated by the commission as "P. C. form 301-a." A copy of this form of affidavit, which is attached to the answer and made part thereof, contains this clause: "Affiant further says that full compensation will be paid to the carrier by the employer and that said full compensation and the basis for computing same is set forth in detail in exhibit A, a copy of which is attached hereto and made a part hereof."
There seems to be no good reason why the commission is not entitled to this information. In other jurisdictions it has been held that rates of private contract haulers may be regulated at least within certain limitations. Stephenson v. Binford, 287 U.S. 251, 77 L. Ed., 288, 53 S.Ct., 181; Anderson v. Thomas, Commr., 144 Ore., 572, 26 P.2d 60; Johnstown v. L. B. Hartz Stores, Inc., 202 Minn. 132, 277 N.W. 414; Atchison, T. S. F. Ry. Co. v. State Corporation Comm., 150 Kan. 553, 95 P.2d 554.
If rates may be regulated without interfering with constitutional rights there is no reason why the commission may not require by rule that information as to rates and other pertinent information be filed with the application.
The relator devotes a part of its brief to urging that its business "is not clothed with a public interest which subjects it to legislative restriction" other than such as may be necessary to secure observance of proper safety rules and regulations on public highways. No question of fixing rates is presented by the record and it is not even claimed that the commission has taken any steps to regulate the compensation that may be collected by relator from Paramount Distillers, Inc., or other employers of relator. Since the rule of the commission required only the giving of information no restriction was thereby imposed on relator's business.
The demurrer to the answer is overruled and relator not desiring to plead further, the writ is denied.
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, TURNER, WILLIAMS, MATTHIAS and HART, JJ., concur.