Opinion
No. 23021
Decided November 4, 1931.
Public Utilities Commission — Motor transportation companies — Extension of interstate operation — Publication of notice of application, not required — Description of terminus sufficient, when — Section 614-90, General Code.
1. In an application before the Public Utilities Commission for a certificate or an extension thereof, involving purely interstate operation, publication of notice of filing such application is not required. ( Erie Railroad Co. v. Public Utilities Commission, and New York Central Railroad Co. v. Public Utilities Commission, 123 Ohio St. 682, approved and followed.)
2. An application for an extension of a certificate for interstate operation along the streets of a municipality to the corporation limits of such municipality and along a designated state highway to a point one-fourth of a mile beyond, is a sufficient description of the terminus of such proposed extension to be a compliance with Section 614-90, General Code.
ERROR to the Public Utilities Commission.
This is a proceeding seeking to declare an order of the Public Utilities Commission unreasonable and unlawful. The facts out of which the controversy grows are as follows:
The Eastern Ohio Transport Company, a motor transportation company, was the owner and operator of a bus route from Shadyside, Ohio, through Bellaire and Bridgeport, to Wheeling, West Virginia, under Interstate Certificate No. 3417, hauling interstate passengers only. On January 24, 1931, an application was filed with the Public Utilities Commission to extend the route under this certificate by traveling from Wheeling to Bridgeport, thence north through Martins Ferry to a point one-fourth mile north of the north corporation line of Martins Ferry. The description of the proposed extension as it appears of record is as follows:
"Leave present certificated line at the corner of Bridge and Lincoln avenues, Bridgeport, Ohio; thence north on Lincoln avenue, to the corporation line of Bridgeport which is also the corporation line of Martins Ferry; thence via Zane highway to the north corporation limit of Martins Ferry; thence via State Highway No. 7 to and through Mackey's addition, returning via the same route to the corporation line of Martins Ferry; thence via Zane highway to the intersection of Zane and Fifth streets; thence south on Fifth street to its intersection with Hanover street, east on Hanover to Fourth street, south on Fourth street to Maple street, west on Maple street to Broadway, south on Broadway to Union street, west on Union street to Zane highway, south on Zane highway to the corporation line, balance of route, same as northbound.
"Mileage:
"Bridgeport (within corporate limits) ........... 1.00 "Martins Ferry (within corporate limits) ........ 2.00 "Belmont county (exclusive corporate limits) .25 ----- "3.25"
The proposed extension asked for and contemplated purely interstate operation. Protests were filed by the plaintiffs in error and the matter came on to be heard before the commission. The evidence having been introduced and the matter duly submitted to the commission, it ordered as follows:
"It is further ordered, that the said route prescribed in said Certificate No. 3417 be, and hereby the same is amended to include therein the following extension:
"Beginning at corner of Bridge and Lincoln avenues, Bridgeport, north on Lincoln avenue to corporation line of Bridgeport, which is also the corporation line of Martins Ferry; thence via Zane highway to the north corporation line of Martins Ferry; thence via State Highway No. 7 to Glens Run road, a point one-fourth mile north of Martins Ferry, continuing via same route to the corporation line of Martins Ferry; thence via Zane highway to Fifth street; thence south on Fifth street to Hanover street, east on Hanover to Fourth street, south on Fourth street to Maple street, west on Maple street to Broadway, south on Broadway to Union street, west on Union street to Zane highway and south on outgoing route.
"Conditioned, however, that such extension is granted with the restriction to the transportation thereover of persons in interstate commerce only, and the commission hereby prescribes that such interstate transportation service shall not be interpreted to include the carriage of passengers whose ride between points of origin and destination within the state of Ohio is made by way of a route which leaves and re-enters the state of Ohio."
An application for rehearing was denied, and this proceeding was instituted in this court, seeking to set aside such order of the Public Utilities Commission on the ground that the same is unreasonable and unlawful.
Mr. James W. Huffman, Mr. Gordon D. Kinder, Mr. Thomas H. Hogsett, Mr. Earl R. Lewis, Mr. Thomas F. Joseph and Mr. Ross Michener, for plaintiffs in error.
Mr. Gilbert Bettman, attorney general, and Mr. T.J. Herbert, for defendant in error.
Two questions are presented by this record: First, whether or not the applicant gave proper notice by publication; second, whether the route over which the extension was granted was the same as that described in the application.
As to the first of these grounds of attack, it is to be noted that the application before the commission contemplated a purely interstate operation, and the order of the commission expressly confines the extension granted "with the restriction to the transportation thereover of persons in interstate commerce only." The commission further ordered that such service should "not be interpreted to include the carriage of passengers whose ride between points of origin and destination within the state of Ohio is made by way of a route which leaves and re-enters the state of Ohio."
It is conceded that no publication of the application was made, although a list of other transportation agencies was furnished to the commission with the application.
This court has heretofore held, in Erie Rd. Co. v. Public Utilities Commission, and New York Central Rd. Co. v. Public Utilities Commission, 123 Ohio St. 682, 177 N.E. 766, that in a purely interstate operation publication of notice of filing application is not required, pursuant to the amendment of administrative order No. 100 as passed by the Public Utilities Commission on April 18, 1929, which was under consideration in the above noted cases; and we see no reason at this time to deviate from the rule therein announced. Hence, the prayer of the plaintiffs in error is denied as to that ground.
The second ground of complaint is that the route over which the certificate was granted is not the same as that described in the application.
An examination of the record discloses the description of the proposed extension is, in effect, as follows: After naming certain streets in the municipalities of Bridgeport and Martins Ferry, thence to the north corporation limit of Martins Ferry, thence via State Highway No. 7 to and through Mackey's addition, returning via the same route to the corporation line of Martins Ferry, etc. Also, the description contained this language:
Mileage:
Bridgeport (within corporate limits) ........... 1.00 Martins Ferry (within corporate limits) ........ 2.00 Belmont county (exclusive corporate limits) .... .25 ----- 3.25
The record further discloses, in the testimony of A.N. La Roche, president and general manager of the Eastern Ohio Transport Corporation, as follows:
"Q. Well, you say you run through Mackey's addition, where do you go after you go through Mackey's addition? A. To this intersection where there is a place to turn around, the Glens Run road. * * *
"Q. Wherever your terminus is. You say you run to and through Mackey's addition, and then you stop, and say 'Returning via the same route to the corporation line of Martins Ferry.' You don't designate how far you go. A. I think it says one-fourth mile there."
Also, in the testimony of W.L. Turner, city engineer of Martins Ferry:
"Q. What is the settlement known as about a quarter of a mile north of Martins Ferry at the Glens Run road intersection with Number 7 highway? A. That is commonly called Glens Run."
In its order the commission fixed the terminus of the extension granted as "thence via State Highway No. 7 to Glens Run road, a point one-fourth mile north of Martins Ferry." The application clearly disclosed that there was to be a distance of one-fourth of a mile beyond the corporate limits of Martins Ferry upon State Highway No. 7, and that the proposed extension returned by the same route to the corporation line of Martins Ferry, thence through the municipality of Martins Ferry along the Zane highway to the corporation line, and the balance of the route to be the same as northbound.
Under such a state of the record, we do not deem the application as insufficient.
Finding that no prejudicial error has intervened upon either ground set forth by the plaintiffs in error, the finding of the Public Utilities Commission, being neither unlawful nor unreasonable, is hereby affirmed.
Order affirmed.
MARSHALL, C.J., JONES, MATTHIAS, KINKADE and ROBINSON, JJ., concur.