Opinion
Nos. 32784 and 33089
Decided February 11, 1953.
Public Utilities Commission — Motor transportation companies — Certificate of convenience and necessity — Application for rehearing — Grounds for, sufficiently set forth, when — Section 543, General Code — Certificated operator ordered to provide additional service — An order affecting a substantial right — Final appealable order — Section 544, General Code — "Necessity" and "convenience" not synonymous — Definite need of general public necessary — Order granting application for additional irregular service — In disregard of public policy — Unreasonable and unlawful, when.
1. An application for rehearing of an order of the Public Utilities Commission granting an amendment to a certificate authorizing a motor transportation company to transport goods over the highways, which application sets forth concisely the facts found by the commission and which claims that "the commission erred in unlawfully finding and declaring that public convenience and necessity require an amended and additional certificate" authorizing the applicant to serve "any of the 51 points concerning which no evidence * * * of any convenience or necessity to be served was shown," complies with the requirement of Section 543, General Code, that "such application shall set forth specifically the ground or grounds on which the applicant considers said decision or order to be unreasonable or unlawful."
2. Where the Public Utilities Commission upon application finds that public convenience and necessity require the additional service proposed by a motor transportation company and orders a motor transportation company holding an existing certificate of public convenience and necessity over the same route to provide specified additional service within sixty days thereafter, such order affects a substantial right of the latter carrier and is appealable under the provisions of Section 544, General Code. ( Cleveland, Columbus Cincinnati Highways, Inc., v. Public Utilities Commission, 141 Ohio St. 634, approved and followed.)
3. "Necessity" for motor transportation service as contemplated by the Motor Transportation Act is not synonymous with "convenience" or alternative thereto, and the provision, that the Public Utilities Commission must find "convenience and necessity" as a prerequisite to the issuance of a certificate to a motor transportation company to transport property over the highways of this state, requires evidence of a definite need of the public for such transportation service. ( Canton-East Liverpool Coach Co. v. Public Utilities Commission, 123 Ohio St. 127, and A. T. Motor Freight, Inc., v. Public Utilities Commission, 125 Ohio St. 617, approved and followed.)
4. Where, in a hearing on an application by a motor transportation company to so amend its certificate of public convenience and necessity as to permit such company to transport property to and from all points in a designated county, the evidence adduced supports a finding of convenience and in several instances necessity at only six of the 45 incorporated and unincorporated towns and villages in said county, and that 31 of such communities including those six have regular or irregular certificated service, of which no complaint was made, an order of the Public Utilities Commission granting such application on the ground that each community is entitled, as a matter of policy, to both a regular and irregular certificated service is in disregard of the established public policy of this state that no more motor trucks or busses be placed on the public highways than the public necessity requires and is unreasonable and unlawful. ( Modern Motor Express, Inc., v. Public Utilities Commission, 154 Ohio St. 271, approved and followed.)
APPEALS from the Public Utilities Commission.
Both of these cases involve orders of the Public Utilities Commission granting an application of Harry B. Wilson, Middletown, Ohio, to amend certificate No. 2133 authorizing him "to transport property in intrastate commerce on call of the public over irregular routes from and to" "Greenville, Ohio; also to transport houshold goods, office furniture and fixtures upon and over irregular routes to and from any point in Darke county, Ohio," "restricted against service as to household goods, office furniture and fixtures from or to any locality in Darke county, Ohio, other than Greenville, where van equipment is operated by a certificated operator."
The amendment grants authority to Wilson for the "transportation of property from and to Darke county, Ohio (except Greenville, Ohio)." The effect of the amendment is to permit Wilson to transport goods over irregular routes from and to any point in Darke county.
Hearing on the application was by an attorney examiner. The appellants, D.G. U. Truck Lines, Inc., hereinafter referred to as D.G.U., and The Commercial Motor Freight, Inc., hereinafter referred to as Commercial, appeared in protest to the granting of the amended certificate. D.G.U. is the holder of certificate No. 2253 which authorizes it "to transport property in intrastate commerce on call of the public, over irregular routes from and to Greenville, Ohio." It is also the holder of regular-route certificate No. 2244 permitting operation over specified highways in Ohio, including Ohio highways Nos. 49, 71, 503 and 722 and county roads between Union City and Dayton, serving 11 communities in Darke county, namely, Abbottsville, Arcanum, Coletown, Gordon, Greenville, Hillgrove, Ithaca, Jays, Pitsburg, Union City and Weimers Mill.
Commercial is the holder of certificate No. 2588 which authorizes it "to transport property in intrastate commerce on call of the public, over irregular routes from and to Versailles [Darke county], Ohio." It is also the holder of regular-route certificate No. 300 permitting operation over specified highways in Ohio including, in Darke county, highways Nos. 47, 71, 118, 121, 185, 242, 716 and 721, U.S. Highways Nos. 36 and 127 and county roads, and under authority of said regular-route certificate serves the towns of Ansonia, Beamsville, Bradford, Brock, Burkettsville, Castine, Dawn, Fort Jefferson, Frenchtown, Gettysburg, Greenville, Horatio, Landis, New Harrison, New Madison, New Weston, North Star, Osgood, Painters Creek, Pikeville, Rossburg, Stelvideo, Versailles, Webster, Willowdell and Yorkshire, all of which are located in Darke county. Commercial interchanges shipments to or from Arcanum by way of D.G.U. at Dayton.
There are listed in the application 57 communities in Darke county, to 31 of which D.G.U. and Commercial furnish service under either their regular or irregular certificates.
The applicant offered evidence in support of his application to amend his certificate. The testimony was summed up by the attorney examiner in his report to the commission. Most of it related to the need for service at Arcanum, population 1,600, Ansonia, population 900, and New Madison, population 900. No evidence was offered in regard to the transportation situation at Versailles or any other of the communities in the county, although the applicant had solicited the testimony of 51 shippers only nine of whom appeared and testified. Those testifying were from the city of Greenville and the villages of Arcanum, Ansonia, Dawn, Stelvideo (one witness), New Madison, and Osgood (one witness). Most of the witnesses, who testified in favor of the application, made no complaint of present service, other than to indicate a desire for additional and competitive service.
In a discussion of the evidence the attorney examiner stated that the territory sought to be served by the applicant does not have available irregular-route common-carrier service for the transportation of general commodities; that in numerous instances irregular-route service would be a convenience and in several instances a necessity for the proper conduct of the businesses of localities involved; and that "it has been the somewhat general rule followed by the commission that a community is entitled to two types of service — a regular route service which contemplates service at stated times, and an irregular route service whereby the public can have the benefit of service on call when needed."
The attorney examiner recommended that a 60-day order be issued to the holders of certificates therein listed so that they might expand their service in the territory. The list includes Commercial's irregular certificate No. 2588 but does not include its regular certificate or either of the certificates owned by D.G.U.
Exceptions were filed by the appellants and overruled by the commission which proceeded to consider Wilson's application. The commission adopted the report of the attorney examiner, found that public convenience and necessity for the amendment exist and issued an order giving the named certificated operators a 60-day period within which to expand their present operations to provide additional service on the routes for which they hold certificates. An application for rehearing filed by the appellants was overruled, and an appeal was thereupon perfected to this court from the issuance of the 60-day order, which appeal is docketed herein as case No. 32784.
While that appeal was pending in this court, the appellants filed reports with the commission showing that D.G.U. and Commercial each had expanded its operations in accordance with the order of the commission, and a hearing was had on such report before an attorney examiner. Objection was made by Wilson to the submission of such compliance report on the part of D.G.U. on the ground that it had not been included in the list of companies to which the 60-day order was issued, and objection was made by Wilson to the compliance report of Commercial so far as it relates to improvements made in the service under Commercial's regular-route certificate.
The applicant tendered testimony of shippers who showed they were unaware that Commercial was operating under an irregular certificate through Versailles, the appellants having objected to any evidence at such hearing on the question of public convenience and necessity.
The attorney examiner found that D.G.U. was not entitled to an opportunity under the 60-day order to improve its service, for the reason that "the service authorized under an irregular route certificate is of a different kind and character than that authorized under a regular route certificate," and that the commission has consistently held that regular-route operators are not entitled to a 60-day order where application is made to amend or grant an irregular-route certificate and likewise irregular-route operators are not entitled to such 60-day order with respect to regular-route applications.
Therefore, with respect to the application of Wilson only that portion of the compliance report, which relates to service at Versailles under irregular certificate No. 2588 held by Commercial, was considered, and since Commercial offered no evidence of improvement in its service at Versailles the examiner recommended that a certificate of public convenience and necessity be issued to the applicant in accordance with the former finding and order of the commision.
Exceptions were filed to the report of the attorney examiner which were overruled. The commission then entered a finding that from the evidence adduced public convenience and necessity still exist for the services sought to be furnished by the applicant; "that with respect to the motor transportation companies which are the holders of regular route certificates No. 300 and No. 2244, namely, Commercial Motor Freight, Inc. and D.G. U. Truck Lines, Inc., said carriers were not served with copies of the sixty-day order, by virtue of holding said regular route certificates, for the reason that the service proposed by the applicant is not of the same type and character of service authorized under said regular route certificates. Therefore, the compliance reports filed with respect to said regular route certificates by the said regular route certificate holders shall not be given any consideration; that with respect to irregular route certificate No. 2588 authorizing transportation service over irregular routes from and to Versailles, Ohio, there was no showing in the compliance report, nor in the testimony at the hearing thereon, that Commercial Motor Freight, Inc., holder of said certificate, is rendering any service to the public in conformity with such irregular route authority; and that the application of Harry B. Wilson to amend certificate No. 2133 * * * should be, and hereby is, granted."
That order is now before this court upon appeal from the Public Utilities Commission, and such appeal is docketed as case No. 33089.
Mr. Elber J. Shover and Mr. Robert N. Krier, for appellants.
Mr. C. William O'Neill, attorney general, Mr. James M. Burtch, Jr., and Mr. John P. Case, for appellee.
It is the contention of counsel for the Public Utilities Commission that these appeals are not properly before the court for the reason that the applications for rehearing do not comply with Section 543, General Code, which requires that "such application shall set forth specifically the ground or grounds on which th applicant considers said decision or order to be unreasonable or unlawful." The decision of this court in the case of City of Cincinnati v. Public Utilities Commission, 151 Ohio St. 353, 86 N.E.2d 10, is cited in support of such position. In that case it clearly appears that the grounds for rehearing were not specifically set forth in the application but were stated in general statutory terms in the nature of conclusions of the applicant.
In case No. 32784 the appellants set forth the facts as disclosed from the record in regard to the number of communities within the county sought to be served by Wilson and the names and number of communities which the appellants serve, and then set forth four reasons why they contend the rulings, findings and order are unlawful and unreasonable. These reasons may be summarized as follows: (1) The commission erred in failing to reject the attorney examiner's report, (2) the commission erred in finding, "contrary to the manifest weight of the evidence and to the declared transportation policy, fundamental purpose and express provisions of the regulation, particularly General Code Sections 614-83, 614-87 and 614-87 b," that public convenience and necessity exist for the amendment of the certificate and that a 60-day order should issue, (3) the commission erred in unlawfully finding and declaring that public convenience and necessity require an amended and additional certificate of public convenience and necessity at any of the 51 points, concerning which no evidence of a single request for or color of any convenience or necessity to be served was shown or attempted to be shown, and (4) other errors apparent on the face of the record.
It seems quite clear that the application for rehearing in such case is specific and concisely states the complaints which, as disclosed by the record, were urged throughout the entire hearing. The gravamen of the appellants' complaint is the action of the commission in granting what is practically a new irregular certificate without evidence supporting it, and it is difficult to understand how appellants could have better stated the grounds relied upon for a rehearing than to have set forth the facts and their claims wherein the commission erred in granting a certificate based upon those facts. The application for rehearing filed in such case, therefore, fully met the requirements of Section 543, General Code.
Each of the appellants was, under the statute, entitled to written notice of the application involved herein (Section 614-91, General Code), which notice carries with it the implied right to appear and protest. Each is likewise a proper party to the proceeding, within the meaning of the provisions of Section 545, General Code, and entitled to prosecute an appeal to this court.
The question of the validity of the order of the commission, based on its finding, that there are public convenience and necessity for the service sought to be rendered under the proposed amendment to certificate No. 2133 is presented by the record in case No. 32784, including an order to protestants to expand their service under existing certificates. That is a final order and hence appealable to this court. It was so specifically held in the case of Cleveland, Columbus Cincinnati Highways, Inc., v. Public Utilities Commission, 141 Ohio St. 634, 49 N.E.2d 759, the syllabus of which is as follows:
"Where the Public Utilities Commission finds that public convenience and necessity require the service proposed by a motor transportation company which is an applicant for such a certificate and orders the expansion of the operations of another motor transportation company sufficient to provide the specified additional service upon and over the same route which that company is serving under its existing certificate of convenience and necessity, within sixty days thereafter, such order affects a substantial right of the latter carrier and gives rise to a right of appeal under the provisions of Section 544, General Code."
Under the provisions of Section 614-87, General Code, no motor transportation company is permitted to operate without first obtaining from the Public Utilities Commission a certificate of public convenience and necessity authorizing such operation. Such convenience and necessity must be shown by evidence adduced, the burden of which is upon the applicant for such certificate. The same rule and requirement should apply to the extension of a certificated route as an amendment to a previously issued certificate which brings the holder thereof into competition with a previously certificated carrier. (Sections 614-91 and 614-93, General Code.)
A finding of the commission, based upon evidence justifying such finding, that there exist convenience and necessity for the transportation facilities embraced in the application is therefore a prerequisite to the granting of such application.
This court has repeatedly held that "a `necessity' for motor transportation service as contemplated by the Motor Transportation Act is not synonymous with a `convenience,' but is a definite need of the general public for a transportation service where no reasonably adequate service exists." Canton-East Liverpool Coach Co. v. Public Utilities Commission, 123 Ohio St. 127, 174 N.E. 244; and A. T. Motor Freight, Inc., v. Public Utilities Commission, 125 Ohio St. 617, 184 N.E. 11.
Is the order of the Public Utilities Commission in case No. 32784 unreasonable or unlawful because it grants the amendment to the certificate of Wilson based upon a finding that public convenience and necessity exist, where the evidence shows that irregular-route service in some instances would be a convenience and in several instances a necessity for the proper conduct of various types of business, but there was no evidence that the service already being rendered is not adequate.
The evidence upon which the commission found that the amendment to the certificate is required was clearly insufficient in itself to support the application. Four witnesses appeared to testify in regard to the situation at Arcanum, which community is being served under a regular-route certificate by D.G.U., three witnesses in regard to the situation at Ansonia, one witness in regard to the communities of Dawn and Stelvideo, one witness in regard to transportation facilities at New Madison and Osgood, which latter communities are being served by Commercial under its regular certificate, and one witness, who is a banker in Ansonia, in regard to that community. Therefore, evidence was offered only in regard to six of the 45 towns and villages in Darke county, incorporated and unincorporated.
This situation makes significant the finding of the attorney examiner, which was approved by the commission, that it was the established policy of the commission to provide each community with service under an irregular certificate. It also shows a purpose to grant irregular certificates even in the absence of evidence showing necessity and convenience for such service. It might be well to note, at this time, that it seems apparent that these communities in Darke county already have some irregular service as indicated by the 60-day order issued to the 13 irregular-route operators, other than Wilson, engaged in transportation in the county.
The authority of the Public Utilities Commission to grant such certificates is conferred by statute (Section 614-87, General Code). The public purpose to be served as contemplated by the statute has been the subject of numerous decisions of this court, the most recent of which is Modern Motor Express, Inc., v. Public Utilities Commission, 154 Ohio St. 271, 95 N.E.2d 764, the first paragraph of the syllabus of which is as follows:
"The purpose of the Motor Transportation Companies Act (Sections 614-84 to 614-102 a, inclusive, General Code) is to secure to the public necessary and convenient common carrier service over the highways, and a certificate of public convenience and necessity may not be issued by virtue of that act, where the issuance would effect a surrender of the paramount rights of the public in the use of such highways. Such a certificate is issued for the benefit of the public and not for the benefit of the recipient."
Previous decisions which have established that principle are cited in the opinion in that case, and it might be well to repeat that "the finding of `public convenience and necessity' as a prerequisite to the granting of certicates to operate motor vehicles over the public highways requires the commission to limit its authorization so that no more motor trucks or busses are placed on the highways of the state than the public necessity requires."
The record before us being devoid of evidence that there exist public convenience and necessity for irregular service in practically all the communities in the county, but containing evidence that some 31 communities already have service by holders of regular or irregular certificates, the granting of an amendment to Wilson's certificate was not warranted and, therefore, the order of the commission finding such necessity and convenience and ordering other carriers to improve their service within the 60-day period is unreasonable and unlawful and is hereby reversed.
No basis having been established by the evidence for the granting of the amendment applied for which is tantamount to the issuance of an additional certificate of public convenience and necessity, the orders of the commission in both cases are reversed.
Orders reversed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN and STEWART, JJ., concur.