Opinion
Nos. 30846 and 30839
Decided July 2, 1947.
Public Utilities Commission — Motor transportation company or common carrier by motor vehicle — Corporation, company or copartnership included within terms, when — Section 614-84 (a), General Code — Railroad authorized to enter into working arrangement with motor transportation company — Section 8746-1, General Code — Status of railroad or character of motor transportation company unaffected, when — Different and specialized or limited transportation service — Not necessary to give existing carriers opportunity to furnish same, when — Section 614-87, General Code.
1. Under the provisions of Section 614-84 (a), General Code, the terms "motor transportation company" and "common carrier by motor vehicle" include every corporation, company or co-partnership when engaged, or proposing to engage, in the business of transporting persons or property, or both, or of providing or furnishing such transportation service, for hire, whether directly or by lease or other arrangement, for the public in general, in or by motor propelled vehicles of any kind whatsoever, over any public highway in this state. (Paragraph one of the syllabus in the case of Cleveland, Columbus Cincinnati Highway, Inc., v. Public Utilities Commission, 144 Ohio St. 557, approved and followed.)
2. Under the provisions of Section 8746-1, General Code, a railroad company may enter into working arrangements and agreements with a corporation organized for or engaged in business as a motor transportation company or a common carrier by motor vehicle, and under such an arrangement or agreement, the railroad company does not become a motor transportation company, nor does the contracting motor transportation company thereby lose its character as a common carrier by motor vehicle. (Paragraphs two and three of the syllabus in the case of Cleveland, Columbus Cincinnati Highway, Inc., v. Public Utilities Commission, supra, approved and followed.)
3. If a different and specialized or limited transportation service is required and proposed, a new certificate of public convenience and necessity authorizing such service may be granted without first giving existing motor transportation companies a period of not less than 60 days in which to provide such service under Section 614-87, General Code. (Paragraph four of the syllabus in the case of Cleveland, Columbus Cincinnati Highway, Inc., v. Public Utilities Commission, supra, approved and followed.)
APPEALS from the Public Utilities Commission.
Because the legal questions in the instant cases are identical, the appeals to this court have been combined by agreement of counsel.
Case No. 30846 concerns the application of Lake Shore Cartage, Inc., to amend its certificate of public convenience and necessity to enable applicant to operate over a proposed intrastate route extension from Danbury, over state route 2 through Baybridge, Venice, Sandusky, Huron, Ceylon Junction and Ruggles Beach, to Vermilion, thence southward over state route 60 through Axtel to the junction of state route 113, thence over state route 113 through South Amherst to Elyria, with an off-route movement from South Amherst to Amherst. Lake Shore Cartage, Inc., is an Ohio corporation. It operates as a "motor transportation company" or "common carrier by motor vehicle" in this state in intrastate and interstate commerce under certificates granted by the Public Utilities Commission of Ohio and the Interstate Commerce Commission, respectively.
The purpose of the Lake Shore Cartage, Inc., application is to enable applicant to furnish substituted or auxiliary motor-carrier service for the New York Central Railroad Company at five of its intermediate stations, under a contract with that company. Such stations are located at Baybridge, Sandusky, Huron, Vermilion and Amherst. The freight to be transported is to be carried under bills of lading and tariffs of the railroad company with applicant's service restricted and requiring a prior or subsequent movement by rail.
Case No. 30839 concerns the application of The Andrews Transfer Company for a certificate of public convenience and necessity to provide a regular intrastate route service, under a contract with the Baltimore Ohio Railroad Company, between Akron and Ravenna, and to Munroe Falls, such service to be restricted to those and intervening points that are freight stations of the Baltimore Ohio Railroad Company and further restricted to shipments moving under bills of lading and tariffs of the railroad company and requiring a prior or subsequent movement by rail.
The Andrews Transfer Company is an Ohio corporation. It proposes to engage as a "motor transportation company" or "common carrier by motor vehicle" in intrastate and interstate commerce.
The certificates were granted by the Public, Utilities Commission.
Protestants, which are existing motor transportation companies having certificates of public convenience and necessity covering the same territory, perfected these appeals to this court on the ground that the orders of the commission are unreasonable or unlawful.
Mr. Elber J. Shover and Mr. Herbert Baker, for appellants.
Mr. Hugh S. Jenkins, attorney general, and Mr. Harry G. Fitzgerald, Jr., for appellee.
The first question presented by appellants for consideration by this court is whether the proposed operations of Lake Shore Cartage, Inc., and The Andrews Transfer Company are those of a "motor transportation company" or "common carrier by motor vehicle" as defined by Section 614-84 (a), General Code. The appellants' contention is that such operations are not, and that the New York Central Railroad Company and the Baltimore Ohio Railroad Company are the actual applicants for the certificates.
An examination of the records shows that both Lake Shore Cartage, Inc., and The Andrews Transfer Company are corporate entities which have entered into contracts with the respective railroad companies to perform the services for which the certificates of public convenience and necessity were issued. Those contracts provide that the applicants are not in any way the agents of the railroads; and that the applicants are responsible for the freight, when it is in their charge, and for any injury to the person or property of their employees or third persons, which may arise in the performance of those contracts.
This court has recently decided the case of Cleveland, Columbus Cincinnati Highway, Inc., v. Public Utilities Commission, 144 Ohio St. 557, 60 N.E.2d 166, wherein this issue was before this court. There, too, a substitute motor-carrier service was proposed, under a contract with the Pennsylvania Railroad Company very similar to the contracts before us now. The Pennsylvania Railroad Company there owned the capital stock of the applicant company and the applicant company performed the service under a contract with the Pennsylvania Railroad Company.
In the cases here under consideration, the records do not disclose that either railroad company owned any of the capital stock of the respective applicant company.
In the Cleveland, Columbus Cincinnati Highway, Inc., case, this court, Chief Justice Weygandt having written the opinion, in holding that the applicant was a "motor transportation company" and affirming the order of the Public Utilities Commission granting a certificate of public convenience and necessity to the applicant company; said at page 562:
"Thus it is apparent that this new statute [Section 8746-1, General Code] has expressly authorized a railroad company to do the things that have been done by the Pennsylvania Railroad Company, namely, own capital stock of a motor transportation company and enter into a working arrangement and agreement with such corporation; and there is nothing in the statute to indicate an intention on the part of the General Assembly to the effect that under such circumstances the railroad necessarily becomes a motor transportation company or that the contracting motor transportation company thereby loses its character as a common carrier, as contended by the appellants. It, of course, is true that the motor transportation company is hauling for the railroad, but the fact remains that at the same time it is engaged in public transportation also. The freight transported is the property of neither the railroad company nor the motor transportation company but belongs to members of the public by whom it is taken to one of the enumerated stations to be hauled to another."
The protestants contend that the records do not show public convenience and necessity for the proposed services. In both cases testimony of shippers and railroad officials shows that at least two or three days will be saved in the shipment of less than carload lots; that the services will release railroad equipment for other uses; and that operating economies will be afforded to the railroads. In the opinion of this court, the commission had adequate evidence warranting the granting of the certificates of public convenience and necessity.
Protestants contend that it was error for the commission not to give them sixty-day notices to furnish the proposed services. Here we have proposed services which are specialized and different from existing services. This court has held many times that, where such a service is proposed, a certificate of public convenience and necessity may be granted without first affording existing transportation companies an opportunity to provide such service. Cleveland, Columbus Cincinnati Highway, Inc., v. Public Utilities Commission, supra.
The records do not show that the protesting motor transportation companies will be injured by the granting of the limited certificates. The freight which the applicants will transport is now moving by rail and will continue to move on railroad bills of lading; it is not freight which is being handled by the protestants, so nothing is being taken away from them.
Under the facts as disclosed by the records, it is our opinion that all the questions raised by protestants in these cases have been determined in Cleveland, Columbus Cincinnati Highway, Inc., v. Public Utilities Commission, supra, and it is our conclusion that the orders of the Public Utilities Commission are neither unreasonable nor unlawful and must be and are hereby affirmed.
Orders affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.
TURNER, J., not participating.