Summary
In Greer, the PUCO provisionally accepted and docketed a protest to a railroad crossing approval even though the protest was not filed until several months after the decision granting the approval.
Summary of this case from Allnet Communications v. Pub. Util. CommOpinion
No. 36934
Decided July 5, 1961.
Public Utilities Commission — Application for rehearing — Necessity for and time within which to file — Section 4903.10, Revised Code — Complaint, in effect, an application for rehearing, when — Railroad grade crossing warnings.
APPEAL from the Public Utilities Commission.
The Erie Railroad Company filed with the Public Utilities Commission an application for authority to improve the protection afforded at the grade crossing at Main Street in the city of Kent. The application was docketed as case No. 27800, and the required notices were served. A public hearing was had at and in which the city of Kent was represented and participated. The examiner recommended that the railroad be granted authority to make the proposed change.
On September 30, 1959, the commission, in case No. 27800, entered an order, inter alia, "that the Erie Railroad Company may replace the watchman and existing signs used to protect the crossing * * * with automatic flasher-lights to operate in conjunction with automatic short-arm gates." No application for rehearing was filed, nor was any attempt made to appeal from such order.
On February 11, 1960, the mayor of Kent, by letter, advised the commission that he had been instructed by the city council to file an urgent appeal and protest concerning the installation of the automatic signals. The commission, in answer, advised the mayor that a person desiring a reconsideration of a final order must file a request therefor within 30 days after the date of the order, and that no request was filed or appeal perfected within time from the order of September 30, 1959, but that, although the commission had no intention or desire to reopen its hearings and to receive again the detailed evidence, already submitted, to resolve the issues raised by the mayor, it would docket his letter as a formal complaint.
The mayor's letter of February 11, 1960, was docketed, under case No. 29141, as a formal complaint against the railroad, and a hearing was had before an attorney examiner on May 6, at and in which the city and the railroad were represented and participated, but no evidence was offered. The examiner recommended that the complaint in case No. 29141 be dismissed.
On December 15, 1960, the commission issued its order in case No. 29141, finding that it is without jurisdiction to reconsider its position taken in case No. 27800; that the argument of the city constitutes a collateral attack on the commission's order in case No. 27800; that the failure of the city in case No. 27800 to file the statutory rehearing notice with the commission is fatal to further consideration of the merits of the involved installation; and that the commission has lost jurisdiction to consider the merits of the installation of the automatic devices. The complaint was dismissed, and an application for rehearing was denied on January 6, 1961.
An appeal by the city from the order of December 15, 1960, in case No. 29141, and the order of January 6, 1961, denying a rehearing, brings the cause to this court for review.
Mr. Titus Jackman, city solicitor, for appellant.
Mr. Mark McElroy, attorney general, Mr. Herbert T. Maher and Mr. Andrew R. Sarisky, for appellee.
Mr. James P. Canny, for the Erie-Lackawanna Railroad Company.
The commission's order of September 30, 1959, in its case No. 27800 was a final order from which no appeal was perfected and no application for rehearing was filed within 30 days as required by Section 4903.10, Revised Code. The commission, therefore, has no power to entertain an application for rehearing filed after the expiration of such 30-day period.
The hearing before the commission in its case No. 29141, from the order in which this appeal is taken and in which no evidence was offered but which consisted of arguments on the facts presented in the former proceeding before the commission in its case No. 27800, the record of which is not before the court, is in effect a rehearing of case No. 27800. The city having lost its right to question the order entered in case No. 27800 by failing to comply with the statutory requirements for rehearing, the commission was not in error in dismissing the complaint.
The order of the commission is affirmed.
Order affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.