Opinion
No. 25801
Decided March 18, 1936.
Public Utilities Commission — Motor transportation companies — Certificate of public convenience and necessity — Consent of municipalities not necessary unless immediately contiguous — Section 614-86, General Code — Municipal regulatory rights subordinated to authority granted Public Utilities Commission — Section 614-84 et seq., General Code — Powers of charter city not impaired — Sections 3 and 7, Article XVIII, Constitution — Charter city powers delegated subject to general laws.
1. A conditional certificate of convenience and necessity was granted by the Public Utilities Commission of Ohio to a motor transportation company for a route from the municipal corporation of Bedford, through the municipal corporations of Maple Heights and Garfield Heights and thence through the City of Cleveland to the Public Square therein. Maple Heights is immediately contiguous to Bedford and Cleveland. Garfield Heights is immediately contiguous to Cleveland and Maple Heights, but is not immediately contiguous to Bedford and there is no contiguity between Bedford and Cleveland. Held: The Public Utilities Commission had jurisdiction and power to grant such conditional certificate without the consent of the several municipal corporations, inasmuch as such route does not come within the exception included in the last clause of Section 614-86, General Code, as each and all the municipal corporations through which such route passes are not immediately contiguous.
2. The General Assembly of Ohio has subordinated the rights of municipalities to regulate motor transportation lines within their limits to the authority granted the Public Utilities Commission of Ohio by the Motor Transportation Act, Sections 614-84 to 614-102 a, General Code, inclusive.
3. Under the Motor Transportation Act the Public Utilities Commission of Ohio had power and authority to grant such certificate of convenience and necessity and fix the terminus in the city of Cleveland at the Public Square without the consent of the city of Cleveland, and in so doing took nothing from the city of Cleveland that was granted it as a charter city by virtue of Sections 3 and 7 of Article XVIII of the Constitution of Ohio, as thereunder the city of Cleveland has the authority to exercise all powers of local self-government and to adopt and enforce within its limits such local police, sanitary and other similar regulations as are not in conflict with general laws.
ERROR to the Public Utilities Commission.
This case comes before the Supreme Court upon a joint petition in error complaining that a final order of the Public Utilities Commission dated November 20, 1935, authorizing The Cleveland Southeastern Bus Company to operate as a common carrier of passengers over a regular route between fixed termini within the cities of Cleveland, Garfield Heights, Maple Heights and Bedford exclusively, is not within the jurisdiction of the commission, is unreasonable and unlawful, and that there is manifest error in the proceedings before the commission and in such order.
The plaintiffs in error, the City of Cleveland and The Cleveland Railway Company, on December 6, 1935, applied for a rehearing before the commission and specified the points of error, unlawfulness and unreasonableness in such order substantially as in their pending petition in error. The application for rehearing was overruled on December 31, 1935, and the petition in error was filed in this court on January 7, 1936.
The proceedings before the Public Utilities Commission were known as its case No. 7894, and the authority granted The Cleveland Southeastern Bus Company is known as Certificate of Public Convenience and Necessity No. 5320.
In accordance with the application of the bus company, the certificate describes the route as follows:
"Beginning at the corner of Northfield and Forbes Road in the City of Bedford on State Route No. 8; thence on Union Street to the intersection of State Route No. 8 with State Route No. 14; thence over State Route No. 14 through the Cities of Bedford, Maple Heights, Garfield Heights and Cleveland to the Public Square in the City of Cleveland; thence on State Route No. 2 (Superior Avenue) to the Greyhound Terminal at East 9th Street and Superior Avenue; thence south on East 9th Street to the intersection of East 9th Street with State Route No. 14 (Broadway Avenue)."
The certificate imposes the following conditions:
"Conditioned that no passengers shall be transported whose entire ride is between any two points within the City of Cleveland, Ohio; between any two points within the City of Maple Heights, and between a point in the City of Cleveland and a point in the City of Maple Heights and vice versa. Conditioned that local subdivisions may make reasonable local police regulations within their respective boundaries not inconsistent with the provisions of Sections 614-84 to 614-102 of the General Code of Ohio."
The order of the commission of November 20, 1935, imposed the following two additional conditions:
"Conditioned upon the revocation of Certificate No. 2668 now held by the applicant, providing for the maintenance and operation of a motor transportation company carrying persons as a common carrier for hire upon and over a part of said route, which said Certificate No. 2668 has been renounced by the applicant upon condition that this application be granted.
"* * * and conditioned further that the City of Cleveland may impose such reasonable police regulations as it may see fit with respect to the streets to be traversed within the City of Cleveland."
The hearing upon the application was held June 7, 1935. Prior to the hearing, The Cleveland Railway Company, on June 1, 1935, and the city of Cleveland, on June 5, 1935, filed motions to continue the hearing until evidence should be submitted that the city of Cleveland had consented to the operation of such bus service. At the beginning of the hearing the plaintiffs in error objected to further proceedings upon the application, on the grounds that the commission was without jurisdiction of the proposed operation and that evidence of consent of the city of Cleveland to the operation had not been obtained. The city of Maple Heights joined in the same motion for the reasons that the commission was without jurisdiction and that the consent of Maple Heights to the operation had not been obtained. These motions were held and subsequently denied in the order of November 20, 1935.
During the hearing on the merits of the application these plaintiffs in error protested against allowance of the application upon the further grounds that the present service between Bedford and Cleveland furnished by common carriers of passengers is reasonably adequate, that the applicant had failed to prove necessity for the operation, and that protestants had proved the operation would be contrary to public convenience and necessity. These protests were overruled by the order of November 20, 1935.
Plaintiffs in error claim:
1. That the order is contrary to the decision of this court in the case of City of Cleveland v. Public Utilities Commission, 126 Ohio St. 210, 184 N.E. 851.
2. The jurisdiction of the commission is statutory only and the Motor Transportation Act excludes the commission of jurisdiction of such route and operation. State, ex rel. Thomas, v. Thomas, Judge, 121 Ohio St. 450, 169 N.E. 454, and New York Central Rd. Co. v. Public Utilities Commission, 123 Ohio St. 370, 175 N.E. 596, are relied on to establish the law that the Public Utilities Commission has only such jurisdiction as is conferred by statute.
The Motor Transportation Act is included in Sections 614-84 to 614-102 a, General Code, and the following portions of the. Act are pertinent:
Section 614-86, General Code, provides: "The public utilities commission of the state of Ohio is hereby vested with power and authority to supervise and regulate each such motor transportation company in this state; * * *."
Section 614-84 (a) provides: "The term 'motor transportation company,' when used in this chapter, * * * shall not include any * * * corporation, * * * in so far as they own, control, operate or manage a motor vehicle or motor vehicles used for the transportation of persons or property, or both, and which are operated exclusively within the territorial limits of a municipal corporation, or within such limits and the territorial limits of municipal corporations immediately contiguous thereto * * *."
3. The route and operation involved in this case are entirely within the city of Maple Heights and municipal corporations immediately contiguous thereto, and by virtue of Section 614-84, General Code, the commission has no jurisdiction.
4. That unincorporated county territory must be involved on the route before the commission has jurisdiction. The following cases are cited to support this contention: New York Central Rd. Co. v. Public Utilities Commission, supra; State, ex rel. Thomas, v. Thomas, Judge, supra; Cincinnati Traction Co. v. Public Utilities Commission, 113 Ohio St. 618, 150 N.E. 81; Coney Island Motor Bus Co. v. Public Utilities Commission, 115 Ohio St. 47, 152 N.E. 25, and State, ex rel. Mahoning Bus Co., v. Gessner, Judge, 114 Ohio St. 652, 151 N.E. 751.
It is claimed that the General Assembly sought to distinguish between suburban and interurban transportation lines, when Section 614-84, General Code, was amended by inserting the word "immediately" before the word "contiguous" (111 Ohio Laws, 19).
5. Even if the commission had jurisdiction to entertain and grant the application, the applicant would have to obtain the consent of the city of Cleveland to come within four miles of the Public Square.
Cleveland being a charter city, this right is claimed by virtue of Sections 3 and 7 of Article XVIII of the Constitution of Ohio.
6. Granting that the Public Utilities Commission of Ohio has jurisdiction, still the city of Cleveland has the right and should be permitted to fix the route, stops and terminus within the city.
7. The old service was adequate and there was no necessity or convenience justifying a certificate for service to the Public Square in Cleveland. Section 614-87, General Code.
8. Previously existing service furnished by railroads and other bus companies was reasonably adequate for through service to down-town Cleveland.
9. Coordinated service by the applicant from and to the lines of the Cleveland Railway Company at the East 93rd Street loop was adequate.
The Public Utilities Commission claims it had jurisdiction to make the order complained of and that such order is not unreasonable and unlawful.
Error is prosecuted to this court to reverse the order of the commission.
Mr. Alfred Clum, director of law, and Mr. Henry S. Brainard, for plaintiff in error, the City of Cleveland.
Messrs. Squire, Sanders Dempsey, Mr. H.J. Crawford and Mr. Frank Harrison, for plaintiff in error, The Cleveland Railway Company.
Mr. John W. Bricker, attorney general, Mr. Donald C. Power and Messrs. McConnell, Blackmore Cory, for defendants in error.
We will pass upon the charges of error contained in the statement seriatim.
The following map in miniature graphically portrays the course and termini of the route complained of:
The case of City of Cleveland v. Public Utilities Commission, is not applicable in any wise to the case before us, as the bus line therein involved was wholly within the city of Cleveland.
We fully agree that the jurisdiction of the Public Utilities Commission of Ohio is statutory only, and that the cases cited by plaintiffs in error support such contention beyond all cavil and this is not disputed by any one. It must likewise be conceded that the Motor Transportation Act is included in Sections 614-84 to 614-102 a, General Code, inclusive, and it is patent that a construction of the last clause of Section 614-86, General Code, determines the question involved in this case. That clause of Section 614-86, General Code, upon which this case turns, reads as follows:
"* * * no motor transportation company operating under a certificate of convenience and necessity shall carry persons whose complete ride is wholly within the territorial limits of a municipal corporation, or within such limits and the territorial limits of municipal corporations immediately contiguous thereto, except with the consent of such municipal corporation or municipal corporations." (Italics ours.)
It will be noted from the map that the course of this route is northwest. Beginning in the municipal corporation of Bedford, it runs through the municipal corporations of Maple Heights and Garfield Heights, and thence through Cleveland to the Public Square.
Maple Heights, the next adjoining municipal corporation to Bedford on the northwest, is contiguous to Cleveland, as well as Bedford; Garfield Heights is contiguous to Cleveland and Maple Heights, but there is no contiguity between Cleveland and Bedford or between Garfield Heights and Bedford, and for that reason does not come within the exception provided for by the last clause of Section 614-86, General Code.
When the scope and meaning of the words "immediately contiguous" are determined in the light of legislative intent, this case is ended, unless Section 614-86, General Code, runs counter to the Constitution; and we are frank to say we find no unconstitutionality.
Words contained in a legislative enactment are given their plain, usual and ordinarily accepted meaning, unless and until it is made manifest that a different meaning was intended by the enacting body. This proposition is fundamental and needs no citatory authority.
It is well to remember that Section 614-86, General Code, was amended in 1925 (111 Ohio Laws, 19), for the purpose of taking from the Public Utilities Commission the power and authority to regulate motor transportation companies where the complete ride is wholly within the limits of a particular municipal corporation, or within such limits and the territorial limits of municipal corporations immediately contiguous thereto, except with the consent of such municipal corporation or municipal corporations.
In ascertaining the "plain, usual and ordinary" meaning of the words "immediately" and "contiguous," we will use the preferential meaning as given in Webster's International Dictionary, viz:
Immediately — "Without intermediary; in direct connection or relation."
Contiguous — "In actual contact; touching."
The "immediate" contiguity contemplated by Section 614-86, General Code, does not obtain in this case. We have carefully examined the cases cited and we fail to find in any of the cases any authority for the claim that a transportation route must extend into unincorporated territory before the Public Utilities Commission has jurisdiction over it; but we can understand how a transportation route running through a half dozen or more contiguous but not "immediately contiguous" municipal corporations could be completely emasculated at the whim of one municipal corporation, regardless of how the others felt about it.
We fail to see how the city of Maple Heights is the key municipal corporation in this set-up. True, Maple Heights is immediately contiguous to Bedford and Cleveland, the termini of the route, but Garfield Heights must not be overlooked, for it is not immediately contiguous to Bedford.
Neither can we find lodgment for the contention that the General Assembly sought to distinguish between suburban and interurban lines when it amended Section 614-84, General Code, in 1925 (111 Ohio Laws, 19).
The Public Utilities Commission had jurisdiction to make the order complained of herein unless the Constitution of Ohio places a limitation thereon in so far as the city of Cleveland is concerned, by virtue of Sections 3 and 7 of Article XVIII thereof.
It is most evident that the General Assembly since the creation of the Public Utilities Commission of Ohio has subordinated the right of the municipality to regulate transportation lines within its limits to the authority granted the Public Utilities Commission.
A careful reading of Sections 614-86 and 614-98, General Code, eradicates all doubt along this line.
We have examined Murphy v. City of Toledo, 108 Ohio St. 342, 140 N.E. 626; Hodge Drive-It-Yourself Co. v. City of Cincinnati, 123 Ohio St. 284, 175 N.E. 196, and Sylvania Busses, Inc., v. City of Toledo, 118 Ohio St. 187, 160 N.E. 674, and fail to find wherein such rule is in any wise changed.
In the case of Cleveland Ry. Co. v. Village of North Olmsted, ante, 144, 198 N.E. 41, there was but one question, viz.: The right of the city of Cleveland to regulate an uncertificated bus line operated by the village of Olmstead within the corporate limits of the city of Cleveland.
The decision in the case of Village of Perrysburg v. Ridgway, a Taxpayer, 108 Ohio St. 245, 140 N.E. 595, was disregarded in the case of City of Nelsonville v. Ramsey, 113 Ohio St. 217, 148 N.E. 694, inasmuch as the decision in that case was rendered prior to the enactment of Section 614-86, General Code.
It is further contended by plaintiffs in error that the old service was adequate and that there was no necessity or convenience justifying a certificate for service to the Public Square in Cleveland.
As to these questions, both being questions of fact, this court has many times held that it will not substitute its judgment for that of the Public Utilities Commission and will not disturb its findings unless they are against the manifest weight of the evidence. There is testimony in the record to support the findings of the Public Utilities Commission on these questions, and they will not be disturbed.
Order affirmed.
WEYGANDT, C.J., WILLIAMS, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.