Opinion
No. 31806
Decided March 15, 1950.
Public Utilities Commission — Motor transportation companies — Contract carrier granted permit to serve additional shipper — Wholesaler required prompt unloading and distribution of bulk shipments upon receipt — Common carriers unable to render prompt delivery service — Order of commission not unreasonable or unlawful.
Where a wholesale dealer and shipper of petroleum products lacking storage facilities requires in his business prompt unloading of bulk shipments to him and prompt and continuous delivery of his products to his customers at scattered points, and where common carriers by motor vehicle have in former years been unable to render prompt service to such shipper in the delivery of such products, an order of the Public Utilities Commission granting to a contract carrier by motor vehicle, satisfactory to the shipper and qualified under the statutes, a permit to serve the shipper as an additional customer, is not unreasonable or unlawful.
APPEAL from the Public Utilities Commission.
Childe Petroleum Products Company of Reading, Ohio, is a wholesaler of petroleum products and sells gasoline, kerosene and oil to jobbers and industrial plants. Its products come to it by river barge from out of state points and from a refinery at Hooven, Ohio. Childe distributes, in bulk by means of tank trailers, its products to its customers from the river terminals and from the refinery.
On September 17, 1948, Stillpass Transit Company, Inc., a contract carrier by motor vehicle, then operating under a permit from the Public Utilities Commission, filed with the commission an application for additional contract carrier authority to serve Childe as an additional shipper.
F.J. Egner Son, Inc., and Refiners Transport Terminal Corporation, both common carriers by motor vehicle operating under certificates issued by the commission, protested and opposed the granting of the amended permit to Stillpass Transit Company, Inc.
An attorney examiner of the commission after hearing the application and protests thereto recommended that the application be granted, to which recommendation the protestants excepted.
On February 2, 1949, the commission adopted the attorney examiner's report, rejected the exceptions, granted the application, and thereafter denied protestants' applications for rehearing.
This action is now before this court on appeal on the part of the protestants claiming that the order of the commission is unreasonable and unlawful.
It appears from the testimony taken before the attorney examiner that, prior to the latter part of 1946 and possibly in early 1947, Childe used the service of Refiners and on one occasion the service of Egner. About the date above mentioned, Childe discontinued the service of Refiners and began to make its own deliveries by leasing equipment owned by Stillpass. At the time of the hearing two or three pieces of such equipment were being used by Childe each day. Childe, hereinafter called the shipper, claimed that the Refiners service was not satisfactory because of delays in picking up shipments and inability to give prompt service required by the business of the shipper. On the other hand, the protestants claim that they were handicapped in giving service to the shipper, when they served it, by the disruptions of the immediate post-war years and that the shipper had not given them an opportunity to serve it in recent years.
The general manager of the shipper testified concerning Refiners that "on numerous occasions we were subject to possible delays of four or five days before they could get to us. We would call on a number of occasions and they would find it necessary to advise us that they were some 90 or 100 loads back-ordered and couldn't get to us until it was cleaned up and we had to wait our turn"; that Refiners had not been in touch with the shipper for a year and a half; that shipper is subject to several conditions, particularly on the part of oil jobbers, whereby deliveries must be made immediately or within 24 or 48 hours; that on other occasions when barges came in it became necessary to obtain trucks and unload and deliver at once; that the shipper has no storage facilities, which makes it necessary to have sufficient hauling equipment to move the consignment at once; that shipper has lost customers because of delayed deliveries; that shipper has had very poor results in securing tank car or rail equipment; that such equipment is very scarce; and that Refiners had made no solicitation of the business of the shipper and had not shown any interest in it.
The witness testified also that Stillpass had and has an interstate commerce commission certificate and that it could have and had, during the then past year, served the shipper to points in states other than Ohio. The witness expressed a preference for the service of a contract carrier over that of a common carrier because the former was more flexible and better suited to the individual needs of the shipper.
The president of Stillpass testified that his company has available for service 13 tractors and 10 trailers; that, although four tractors and four trailers are in the service most of the time for Procter Gamble, the remainder are available for service to shipper.
The secretary and traffic manager of Refiners testified that his company had some 167 tractors, 141 semi-trailers and 104 four-wheel trailers; that his company moves petroleum products out of the Cincinnati district; that the company has five operating terminals and a maintenance terminal in Ohio and operates as a common carrier; that the shipper discontinued the service of Refiners about two years before the hearing; that up to the middle of 1947 its service was handicapped by the fact that it was unable to procure equipment; that at the end of the war its equipment was not in very good shape; that such equipment was all from four to seven years old, was subject to frequent breakdowns and as a result there were many occasions when Refiners was noticeably behind in providing service, but that this situation has now been remedied; that it has ample equipment to meet all requests for service; and that Refiners is prepared to respond to the call of anybody for service within the scope of the former's authority.
The traffic manager for the protestant Egner testified that his company afforded common carrier service in Ohio and especially in the transportation of petroleum products; that his company takes calls for service in turn as they come in; that it has sufficient equipment for all demands; and that the only call and request made by his company on the shipper for an opportunity to serve was on November 4, 1948, after Egner had received notice that Stillpass had made the application for the amended permit.
The attorney examiner, after reviewing the evidence substantially as above detailed, made a finding of fact that "the applicant is an experienced and proper person to whom authority may be granted. The operation proposed is that of a contract carrier and the contract is bilateral in nature and guarantees an adequate minimum. It appears from the testimony that the shipper ceased using Refiners' service two years ago because of inadequate service, and has never used the service of Egner."
The examiner recommended that the application be granted, and it was granted by the commission on February 2, 1949. The protestants took exceptions to the recommended order, mainly on the grounds that the findings of fact were insufficient to warrant the granting of the application and that the order violates the declarations of policy expressed in Sections 614-83 and 614-109, General Code.
Mr. Taylor C. Burneson and Mr. Jack B. Josselson, for appellants.
Mr. Herbert S. Duffy, attorney general, and Mr. Kenneth B. Johnston, for appellee.
Section 614-109, General Code, regulating the granting of applications for contract carrier permits, is as follows:
"Before granting any permit authorizing the operation of a private motor carrier, the commission shall consider and determine whether such applicant has complied with the provisions of the law and the rules and regulations of the commission governing private motor carriers, and whether or not the operation proposed by the applicant comes within the definition of a private motor carrier, and also whether or not such proposed operation comes within the definition of a motor transportation company as provided in General Code Section 614-84. If the applicant has complied with the provisions of the law and the rules and regulations of the commission governing private motor carriers, and the commission finds the proposed operation and contract of carriage of the applicant and the other contracting party to be that of a private motor carrier and such contract to be in full compliance with the provisions of this chapter and the rules of the commission governing the same, and if the applicant is a proper person to whom to grant a permit, and the granting of such permit, or the approval of the contract as to any change or modification thereof, except as to contracts in the form and with the contents provided under paragraph (f) of General Code Section 614-107 and filed with the commission prior to the effective date of this act, is and will be consistent with the declared policy, and purpose, of the regulation of transportation by common and contract carriers by motor vehicle, as provided in this chapter, then a permit shall be granted, otherwise the application shall be denied, and any such contract, change or modification thereof shall be rejected by the commission."
Section 614-83, General Code, which states in very general terms the policy and objectives by which the commission shall be guided in the regulation of transportation by common and contract carriers by motor vehicle, reads as follows:
"It is hereby declared to be the policy of this state to regulate transportation by common and contract carriers by motor vehicle in such manner as to recognize and preserve the inherent advantages of, and foster sound economic conditions in, such transportation and among such carriers in the public interest; promote adequate, economical, and efficient service by such motor carriers, and reasonable charges therefor, without unjust discriminations, undue preferences or advantages, and unfair or destructive competitive practices; improve the relations between, and coordinate transportation by and regulation of, such motor carriers and other carriers; develop and preserve a highway transportation system properly adapted to the needs of commerce and the state * * *."
The appellants, who were protestants, complain that the commission failed to make a finding that the granting of the application would be consistent with the policy and purpose of regulation of motor carrier transportation, as declared by statute; and that there was insufficient evidence to warrant the order.
The record shows that the attorney examiner did make some findings and these were specifically adopted by the commission in its order. The attorney examiner found that the application and all formal requirements were in proper form; that the applicant was an experienced and proper person to whom authority might be granted; that the operation proposed is that of a contract carrier; and that the contract is bilateral in nature and guarantees an adequate minimum. Besides, the commission in granting the application necessarily found that the applicant complied with the proper regulations, and that the proposed movement is within the scope of the definition of a private motor carrier. This was sufficient.
An examination of Section 614-83, General Code, above quoted, discloses that it gives the Public Utilities Commission, in most general terms, the widest discretion to determine, as to any proposed movement in transportation, whether, in the public interest, it possesses inherent advantages and fosters sound economic conditions in such transportation and among carriers.
In the instant case, the evidence as a whole discloses that the shipper had a transportation problem in the delivery of its products, which required a constant and flexible service which a common carrier, obliged to serve "in turn" everybody calling for its service, is unable to give. In other words, the deliveries to be made by the shipper in the instant case were of such character as to require either its own supervised delivery service as was made by it through "leased" equipment, or that a carrier which could devote its equipment almost exclusively and constantly to shipper's delivery service.
It is quite clear from the record that there was in 1946 and 1947 a deficiency in the service of Refiners to the shipper, as a result of which the shipper was obliged to provide other delivery service of its own by "leased" equipment. And although there is testimony that Refiners is now in position to give service, there is no assurance that common carrier service, the only type which Refiners is in a position to give, would be adequate.
The commission evidently took the position that the service of the protestants, as common carriers, was not suited to the particular delivery service required by the shipper, and that Stillpass, as a contract carrier, could supply it. The best interest of the shipper lay in the service which a contract carrier could give and this interest carried through to the jobbers who were the customers of the shipper and in turn to the public served by the jobbers. The public interest was thus better served.
Under such circumstances, the order of the commission was fully warranted.
The order of the commission is affirmed.
Order affirmed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.