Opinion
No. 36466
Decided December 21, 1960.
Public Utilities Commission — Railroads — Sections 4905.20 and 4905.21, Revised Code — Providing for abandonment of all or part of public utility services — Provides proper method for change of station from agency to prepay nonagency.
APPEAL from the Public Utilities Commission.
On June 10, 1958, the appellant railroad, hereinafter called the plaintiff, filed with the Public Utilities Commission of Ohio, hereinafter called the commission, an application to discontinue plaintiff's freight station at Haviland, in Paulding County, as an agency station and for authority to operate it in the future as a prepay nonagency station.
Following a hearing before an attorney-examiner, the commission, on February 3, 1959, denied said application, holding that "the applicant has not furnished sufficient probative evidence to indicate that the granting of the instant application would be reasonable having due regard for the welfare of the public."
Thereafter, on March 4, 1959, the plaintiff filed its application for a rehearing, setting forth in its application six grounds. The commission denied the application in all respects save one and granted a rehearing for the purpose of permitting the plaintiff to present by way of oral argument further support for its first ground for rehearing, which reads as follows:
"(1) That the Public Utilities Commission of Ohio does not have jurisdiction or authority to deny or prevent said railroad from discontinuing the operation of its station at Haviland, Ohio, as an agency station and to hereafter operate the same as a prepay, nonagency station, as no abandonment of service is contemplated within the meaning of R.C. 4905.20 and 4905.21, making said order void * * *."
Following argument thereon before an attorney-examiner, the commission on October 21, 1959, held that it "has jurisdiction to hear and determine the issues presented under authority of the provisions of Sections 4905.20 and 4905.21, Revised Code," and confirmed its former order.
The cause is before this court upon appeal by the plaintiff from the order of the commission.
Mr. Wesley A. Wilkinson and Mr. F.M. Apicella, for appellant.
Mr. Mark McElroy, attorney general, Mr. Herbert T. Maher and Mr. Andrew R. Sarisky, for appellee.
Mr. Joseph F. Asher, for Paulding County Farm Bureau Association.
Sections 4905.20 and 4905.21, Revised Code, set out the only statutory method whereby a public utility may make application for and be granted permission to abandon or withdraw all or a part of the services which it renders to the public.
For more than 40 years, applications to change agency stations to prepay nonagency stations have been made under these statutes or their predecessors in the General Code. See 1918 Report of Public Utilities Commission, Case No. 1391, page 92; 1921 Report of Public Utilities Commission, Case No. 2320, page 122; New York Central Rd. Co. v. Public Utilities Commission, 123 Ohio St. 560, 176 N.E. 219. Obviously, such an application has been considered the proper method by everyone concerned.
It is said in 50 American Jurisprudence, 309, Section 319:
"It has been said that the best construction of a statute is that which it has received from contemporary authority. * * * if there is ambiguity in the language, the understanding and application of it when the statute first comes into operation, sanctioned by long acquiescence on the part of the Legislature and judicial tribunals, are the strongest evidence that it has been rightly explained in practice."
The plaintiff here invoked the jurisdiction of the commission under these sections. It should not now be heard to complain of a lack of the commission's jurisdiction under these sections to pass on its application.
This court in the New York Central case, supra, which recognized the propriety of procedure under these sections for permission to change one of the railroad's stations from an agency to a nonagency or prepay station and which held that the refusal of the Public Utilities Commission to grant such application in that case was unreasonable, nevertheless recognized and said in the first paragraph of the syllabus that "each case must be determined upon the peculiar facts attendant thereon."
We have reviewed the record made before the attorney-examiner in this case, and, although some members of the court would have reached a conclusion thereon different from that of the commission, we cannot say that the finding by the commission that "the applicant has not furnished sufficient probative evidence to indicate that the granting of the instant application would be reasonable having due regard for the welfare of the public" is either unreasonable or unlawful.
The order of the Public Utilities Commission is, therefore, affirmed.
Order affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS and BELL, JJ., concur.
TAFT and HERBERT, JJ., dissent.
O'NEILL, J., not participating.