Opinion
No. 40467
Decided June 14, 1967.
Appeal — From Public Utilities Commission to Supreme Court — Grounds considered — Only those specifically named in application for rehearing before commission.
APPEAL from the Public Utilities Commission.
The appellant, The Conneaut Telephone Company, applied to the Public Utilities Commission for an increase in rates and charges. Not being satisfied with the order of the commission, appellant filed an application for a rehearing. The application stated as a reason that the "order is unlawful, unreasonable, discriminatory, and contrary to the evidence in the record and confiscates the plant and property of the application [ sic] in the following particulars:
"1. The commission erred in failing to properly determine and find a fair annual rate of return.
"2. The commission erred in its determination of the annual dollar amount of return to which applicant is entitled.
"3. The commission erred in considering matters aliunde the record.
"4. The commission erred in requiring applicant to apply the method of measuring mileage by airline measurement as set forth in findings 2, 3 and 4 of the findings, opinion, and order, and in the first ordering paragraph of the same requiring this method of measurement even in instances where circuitous construction is required for the convenience and at the request of the customer."
The commission denied the application for a rehearing.
An appeal from the order of the Public Utilities Commission brings the cause to this court for review.
Messrs. Power, Griffith, Jones Bell and Mr. Sidney D. Griffith, for appellant.
Mr. William B. Saxbe, attorney general, Mr. J. Philip Redick and Mr. Langdon D. Bell, for appellee.
Section 4903.10, Revised Code, relating to application for rehearing before the commission, provides in part:
"Such application shall be in writing and shall set forth specifically the ground or grounds on which the applicant considers said order to be unreasonable or unlawful. No party shall in any court urge or rely on any ground for reversal, vacation, or modification not set forth in said application."
In the first three grounds set forth in its application for rehearing, the appellant has not complied with the above-quoted statutory provision. This court cannot consider any matter which was not specifically set forth in an application to the commission for a rehearing as a ground on which the appellant considered the order of the commission to be unreasonable or unlawful. Cincinnati v. Public Utilities Commission, 151 Ohio St. 353.
As to the fourth ground, relative to airline measurement, appellant refers to no evidence to support it.
The order of the Public Utilities Commission is affirmed.
Order affirmed.
TAFT, C.J., STRAUB, MATTHIAS and O'NEILL, JJ., concur.
HERBERT, SCHNEIDER and BROWN, JJ., dissent.
STRAUB, J., of the Sixth Appellate District, sitting for ZIMMERMAN, J.
In its application for rehearing before the commission, appellant stated that "the commission erred in failing to properly determine and find a fair annual rate of return."
Although this allegation of error is broadly stated, it necessarily includes the elements used by the commission in determining a fair rate of return. Questions relating to those elements thus can be raised under this allegation, and the grounds relied upon for rehearing have been set forth sufficiently to comply with Section 4903.10, Revised Code.
The commission allowed 6.375 per cent for the cost of equity capital. An examination of the record reveals that no evidence was submitted which would support such figure. It is apparent, therefore, that the commission's order is unreasonable and unlawful and in my opinion it should be reversed.
HERBERT and SCHNEIDER, JJ., concur in the foregoing dissenting opinion.