Opinion
No. 75-720
Decided March 3, 1976.
Public Utilities Commission — Motor transportation companies — Irregular route certificate of public convenience and necessity — Conditional issuance — Not unreasonable or unlawful, when — Determination by commission.
APPEAL from the Public Utilities Commission.
On April 15, 1974, applicants, Ideal Transportation Company and John D. Tonkovich Son, Inc., sought irregular route certificates of public convenience and necessity from the Public Utilities Commission to transport certain property from and to Monroe County. These applications were consolidated, and at the time of hearing before the attorney examiner there remained three protestants to the issuance of such applications. These protestants, appellants herein, were Sam Masters, D.B.A. Masters Transfer Service, Robert Neff Sons, Inc., and Ohio Truck Service, Inc. Robert Neff Sons was operating under temporary authority of the Masters certificate of public convenience and necessity, with application to purchase such authority pending, and was not permitted by the attorney examiner to participate at the hearing, which included being prohibited from making a proffer of testimony and exhibits.
The commission issued its opinion and order on April 18, 1975, which denied to Robert Neff the opportunity to present evidence. The commission then granted 60 days to Ohio Truck Service within which to correct deficiencies in its authorized services "* * * to meet the evident public convenience and necessity * * *" with compliance to be filed thereafter. This order was subsequently modified to provide for specific advertising and solicitation actions necessary to be undertaken by Ohio Truck Service to effect compliance. The commission's order constituted a conditional authorization, in that it provided that absent such filing of compliance report by Ohio Truck Service, the requested applications for new authority were to be granted.
The cause is now before this court upon appeal as of right.
Messrs. Stiverson Alden and Mr. John L. Alden, for appellants.
Mr. William J. Brown, attorney general, Mr. Charles S. Rawlings and Mr. Robert T. Maison, for appellee Public Utilities Commission.
Messrs. Sanborn, Brandon Duvall, Mr. James Duvall and Mr. James R. Berendsen, for appellees John T. Tonkovich Son, Inc., and Ideal Transportation Company.
The sole issue is whether the conditional issuance of irregular route certificates of public convenience and necessity to applicants was unreasonable or unlawful.
Appellant Robert Neff Sons contends, in essence, that failure to afford it opportunity for presentment of evidence was unreasonable or unlawful. Robert Neff Sons, however, was operating under the certificate originally issued to Sam Masters. Neff's authority was temporary, pending approval by the commission of its application to purchase Masters' authority. Under these circumstances, it was not unreasonable or unlawful for the commission to disallow the protest of one operating under such temporary authority, and, likewise, refusal to consider evidence from a holder of such temporary authority was not improper.
Appellants' further contention is that no inadequacy of service was shown, as required by R.C. 4921.10, as to Ohio Truck Service which held a certificate of public convenience and necessity to service the territory in question. Appellants argue that deficiencies in advertising or solicitation programs by Ohio Truck Service in the Monroe County area were not proper considerations to support a finding of inadequate service. A review of the record reveals that the commission's findings of fact relating to such advertising and solicitation deficiencies were not against the manifest weight of the evidence. We hold that such deficiencies were proper considerations for the commission in its determination of whether the service afforded by Ohio Truck Service was adequate as to shippers in the Monroe County area, inasmuch as awareness of available service by the shipping public is relevant to a meeting of the public need.
For reason of the foregoing, the order of the Public Utilities Commission, being neither unreasonable nor unlawful, is affirmed.
Order affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.