Opinion
Nos. 23278 and 23279
Decided April 20, 1932.
Public Utilities Commission — Motor transportation companies — Intrastate certificate from state line to state line — Existing transportation lines, supplying local service, protected.
ERROR to the Public Utilities Commission.
The above-entitled cases were argued and submitted together involving, as they do, the same issues. Present plaintiffs in error were the protestants before the commission. The record shows that on June 4, 1929, the Pennsylvania General Transit Company, a Pennsylvania corporation, filed with the public utiltities commission of Ohio its application for an intrastate certificate of public convenience and necessity to operate a motor transportation company over the public highways between the Ohio-Pennsylvania state line, from a point near East Palestine to the Ohio-Indiana state line, at a point near Dixon, Ohio, alleging that there was no through bus service over the proposed route and that the transportation companies already operating over said lines were "purely local in character and not offering co-ordination and continuity of transportation service which the public convenience requires."
The original application was amended so that one proposed route was to start at East Palestine, near the Pennsylvania-Ohio state line, thence to Columbiana, Salem, Alliance and Canton; and another proposed route was to operate from East Liverpool to Lisbon, Minerva and Canton, thence through Massillon, Wooster, Mansfield, Marion, Kenton, Lima, Van Wert, and on to the Indiana-Ohio state line, near Dixon.
To the amended application, as well as to the original application, protests were filed by the motor transportation companies and electric lines rendering service along the proposed routes, and by the Erie Railroad Company, among which protestants were the present plaintiffs in error, the Marion-Lima Transit Company and the Pennsylvania-Ohio Coach Line Company.
Hearings were had on said amended application from the 30th day of June, 1930, to October 9, 1930, subject to various adjournments. Upon consideration, on December 8, 1930, the public utilities commission entered its order denying the application. On December 30 following the commission entered an order rescinding and setting aside its order of December 8th, on the ground that it was inadvertently made. On May 11, 1931, the commission entered its second order, denying the application; this order being concurred in by two members of the commission, and one member dissenting. A motion for a rehearing was granted by the commission, and on September 28, 1931, the commission rescinded its order of May 11th and granted said application, upon the concurrence of two members of the commission; one member dissenting.
The final order of the commission provided, among other things, as follows:
"The commission, being fully advised in the premises, finds from the record herein and by virtue of the decision of the Supreme Court of Ohio in the cases of The Pennsylvania Railroad Company et al. v. Public Utilities Commission of Ohio, No. 22739 and Nos. 22754 to 22757, both inclusive, 123 Ohio St. 655 [ 176 N.E. 573]:
" 'That the order of May 11, 1931, denying said application should be, and hereby the same is rescinded, set aside and held for naught, and
" 'That the public convenience and necessity require the operation by the applicant of said intrastate motor transportation company service, upon and over said two routes, as set forth in said amended application filed with this commission April 9, 1930, conditioned, that the applicant shall not haul any passenger whose whole ride is between the termini or points intermediate to the termini of any single existing motor transportation company certificated to operate along any portion of said two routes aforesaid.' "
To reverse this judgment, error is prosecuted to this court.
Mr. Beecher W. Waltermire, for the Marion-Lima Transit Company, the Buckeye Stages, Inc., and the Galion-Mansfield Transit Company.
Mr. R.H. Nesbitt, for the Pennsylvania-Ohio Coach Line Company.
Mr. Aaron Halloran and Mr. R.A. Lindemann, for the Nevin Bus Lines, Inc.
Mr. John L. Cable, for receivers of the Ft. Wayne-Lima Railroad Company.
Messrs. Henderson, Burr, Randall Porter, Mr. H.Z. Maxwell and Mr. A.M. Donnan, for the Pennsylvania General Transit Company.
Mr. Gilbert Bettman, attorney general, and Mr. T.J. Herbert, for the Public Utilities Commission.
The foregoing order of the commission, granting the application, conditioned and restricted as above indicated, is based upon the decision of this court in the case of Pennsylvania Rd. Co. v. Public Utilities Commission, 123 Ohio St. 655, 176 N.E. 573, and a majority of this court are of opinion that that case is controlling in the instant case. The principles declared in that case are applicable to the facts disclosed by the present record. In that case an intrastate certificate was sought over a route across the state already served by various operators along separate portions of the route. These operators were protestants, contending that no public necessity or convenience required the through intrastate operation and that the public was being adequately served by existing transportation lines in the territory severally occupied by the protestants.
This court affirmed the commission in granting the through intrastate certificate; and, while the further question involved in that case was as to which of two applicants for the through intrastate certificate the same should be granted, with such question we are not concerned in the present cases. Our conclusion is, upon the authority of that case, that the findings and orders of the commission in these two cases should be, and are, hereby affirmed.
Orders affirmed.
JONES, MATTHIAS, DAY, ALLEN, KINKADE and STEPHENSON, JJ., concur.