Summary
In Western Reserve Transit v. Pub. Util. Comm. (1974), 39 Ohio St.2d 16, this court reversed the commission's order and directed the commission to proceed to hearing, pursuant to R.C. 4905.26.
Summary of this case from Western Reserve Transit v. Pub. Util. CommOpinion
No. 74-65
Decided July 3, 1974.
Public Utilities Commission — Complaint as to service — R. C. 4905.26 — Procedural requirements — Notice and hearing — Commission without authority to make tentative finding.
APPEAL from the Public Utilities Commission.
Appellant, Western Reserve Transit Authority, filed a complaint with the Public Utilities Commission pursuant to R.C. 4905.26, against Clayton Dyke, d.b.a. The Columbiana Coachline. Appellant provides public transportation throughout the city of Youngstown, and between Youngstown and Boardman. Coachline is a motor transportation company, certified by the commission to transport persons over a regular route from East Palestine, through New Waterford, Columbiana, North Lima and Boardman, to the Youngstown bus terminal, and reverse.
Appellant's complaint concerns action taken by the commission in 1972 (case No. 72-399-B), at Coachline's behest, to remove a restriction against Coachline's transporting passengers whose entire ride was from Boardman to Youngstown and reverse. The effect of this action was to place appellant in direct competition with Coachline over the Boardman-Youngstown route.
In its complaint appellant alleged that "the removal of the aforesaid restriction from * * * [Coachline's certificate] was unwarranted, unjust and unlawful * * *." In response to this complaint the commission, on May 7, 1973, made an "entry pursuant to Section 4905.26, Revised Code," which stated, in part:
"The commission, coming now to consider the above-entitled matter finds:
"(1) That the complainant has filed a complaint with this commission concerning the removal of the restriction against transportation of passengers between Boardman and Youngstown and reverse, pursuant to an order of this commission filed August 11, 1972 after hearing in Case No. 72-399-B;
"(2) It appears that, pursuant to Section 4905.26, Revised Code, there may be reasonable grounds for the complaint stated within the complaint;
"(3) That pursuant to Section 1.08, commission's Code of Rules and Regulations, the commission should serve, by registered mail, a copy of the complaint, with notice to satisfy or answer the same, upon each party against whom there are complaints;
"(4) That Section 1.09, commission's Code of Rules and Regulations, requires that the respondent file its written answer or other pleadings on this commission within fifteen (15) days from the date of this entry;
"(5) That the respondent should serve a copy of said answer or other pleadings upon the complainant;
"(6) That Section 4905.26, Revised Code, requires that the commission retain jurisdiction in this matter for all proper purposes." (Emphasis added.)
Coachline responded to the complaint on June 27, 1973, by moving that it be dismissed. Appellant replied by brief on August 31, 1973, and on October 2, the commission dismissed appellant's complaint for the basic reason that "the record in case No. 72-399-B reveals no such concealment [or pertinent facts as alleged by appellant] in the testimony given by the applicant and further no reasonable grounds for such a challenge of an order of the commission have been set forth in the instant complaint."
It is this order of dismissal that is presently before the court for review in an appeal as of right.
Messrs. Squire, Sanders Dempsey, Mr. Alan P. Buchmann and Mr. James H. Woodring, for appellant.
Mr. William J. Brown, attorney general, Mr. Keith F. Henly and Mrs. Cheryl H. Keith, for appellee.
Appellant's primary contention is that the commission erred in basing its order of dismissal upon a sua sponte evaluation of the record of a prior proceeding, viz., case No. 72-399-B. The commission replies that appellant is improperly seeking to collaterally attack a past, final order, and that appellant's complaint is, therefore, tantamount to an untimely application for rehearing.
It is the judgment of this court that the commission erred in dismissing appellant's complaint, but our rationale differs from that suggested by either party.
R.C. 4905.26, on its face, permits "any person, firm, or corporation" to file a complaint with the commission charging that the operation of a public utility is "in any respect unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation of law * * *." This language is extremely broad, and would permit what might be strictly viewed as a "collateral attack" in many instances.
Upon receipt of a complaint pursuant to R.C. 4905.26, the commission is charged as follows:
"* * * if it appears that reasonable grounds for complaint are stated, the commission shall fix a time for hearing and shall notify complainants and the public utility thereof, and shall publish notice thereof in a newspaper of general circulation in each county in which complaint has arisen. Such notice shall be served and publication made not less than fifteen days nor more than thirty days before hearing and shall state the matters complained of. The commission may adjourn such hearing from time to time.
"The parties to the complaint shall be entitled to be heard, represented by counsel, and to have process to enforce the attendance of witnesses."
The above-quoted procedural requirements in R.C. 4905.26 are clear, but were not observed by the commission in this case. After receiving appellant's complaint, the commission, by journal entry, found that "there may be reasonable grounds for the complaint * * *." (Emphasis added.) Such a tentative finding by the commission is without legal authority. In addition, the commission found that R.C. 4905.26 requires that it retain jurisdiction of appellant's complaint "for all proper purposes." In our view these purposes are clear, and include the serving of notice and conducting a hearing pursuant to R.C. 4905.26.
We do not mean to derogate the procedure established by the commission pursuant to Sections 1.08 and 1.09 of its Code of Rules and Regulations, although we do have serious misgivings about the commission's proclivity to rely upon matters not of record in making its decisions. See Bell Telephone Co. v. Pub. Util. Comm. (1937), 301 U.S. 292; Forest Hills Utility Co. v. Pub. Util. Comm. (1984), 39 Ohio St.2d 1; Motor Service Co. v. Pub. Util. Comm. (1974), 39 Ohio St.2d 5. Because of the basis for our decision here, we intimate no view on the proposition of law urged by appellant.
This case involves matters of substantial importance in the area of public transportation. These matters are best heard, in the first instance, as required by law, by the Public Utilities Commission. The order of the commission, dismissing appellant's complaint, is reversed, and the cause remanded with instructions to proceed to hearing in accordance with law.
Order reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, W. BROWN and P. BROWN, JJ., concur.
CELEBREZZE, J., dissents.