Opinion
No. 40725
Decided June 7, 1967.
Motor transportation companies — Application for certificate to operate — Burden of proof — Public convenience and necessity — Basis of denial of application — Adequacy of existing service — Commission should produce evidence.
1. One, who applies for a certificate to operate as a motor transportation company over an irregular route, has the burden of proving a public convenience and necessity for the authority sought; but, where public convenience and necessity for the authority sought has been established, the commission cannot base a denial of the application solely upon a failure to prove the inadequacy of service of existing carriers, if there is no evidence in the record as to any service furnished by existing transportation facilities.
2. Where neither the applicant nor any protestant offers any evidence as to service furnished by existing transportation facilities in the territory for which an irregular route certificate is sought by a motor transportation company and the commission is of the opinion that such service is reasonably adequate for the public convenience and necessity and proposes to deny an application for a certificate on that ground, the commission should produce evidence for the record as to such service.
APPEAL from the Public Utilities Commission.
On March 9, 1966, the applicant filed an application with the Public Utilities Commission, pursuant to Sections 4921.09 and 4921.10, Revised Code, for an irregular route certificate of public convenience and necessity. The application was not opposed by any existing transportation company.
So far as pertinent, the foregoing statutes read:
Section 4921.09.
"The applicant for a certificate * * * shall give notice of the filing of such application by publication made once a week for three consecutive weeks prior to the day set for hearing such application, in a newspaper of general circulation published at the county seat of the county in this state in which the principal place of business of the applicant is located, or if no place of business of the applicant is located in this state, then in a newspaper of general circulation published at the county seat of Franklin County. * * * Such published notice for an irregular route shall state the fact that such application has been made, the location of the places of business from and to which the applicant proposes to operate, the number of motor vehicles to be used, the nature of the service to be rendered, and the name and address of the applicant.
"Upon application for a certificate when intrastate operations are proposed, the Public Utilities Commission shall give written notice of the filing of such application to all like motor transportation companies operating between fixed termini or over a regular route, street railways, interurban railroads, and railroads operating in this state, and upon application for a certificate to operate over an irregular route when intrastate operations are proposed, the commission shall give additional written notice of the filing of such application to all motor transportation companies holding irregular route certificates at the same location proposed by the applicant.
"The commission shall, after the filing of any such application, fix a date for hearing upon it. * * * When a date for the hearing of an application for a certificate to operate over an irregular route is fixed, the commission shall give the applicant, all motor transportation companies holding irregular route certificates from and to the same location proposed by the applicant, and all motor transportation companies operating over regular routes, street railways, interurban railroads, and railroads operating in this state, at least ten days notice of such hearing. * * *"
Section 4921.10.
"No motor transportation company shall commence its operation as such in this state without obtaining from the Public Utilities Commission a certificate declaring that public convenience and necessity require such operation.
" The commission may, after notice and hearing, when the applicant requests a certificate to serve in a territory already served by a motor transportation company holding a certificate of public convenience and necessity from the commission, grant a certificate only when the existing motor transportation company or companies serving such territory do not provide the service required or the particular kind of equipment necessary to furnish such service to the satisfaction of the commission. In all other cases, with or without hearing, the commission may issue or refuse to issue such certificates as prayed for, issue them for the partial exercise only of the privileges sought, or issue them for the use of certain kinds of equipment and for the handling of certain kinds of material or merchandise over such routes. The commission may attach such conditions to the exercise of the rights granted by such certificates as, in its judgment, the public convenience and necessity require.
" Before granting any certificate the commission shall take into consideration other existing transportation facilities in the territory for which a certificate is sought. If it appears from the evidence that the service furnished by existing transportation facilities is reasonably adequate, the commission shall not grant such certificate.
"* * *
"On a finding of the commission that any motor transportation company does not give convenient and necessary service in accordance with the order of such commission, such motor transportation company shall be given a reasonable time, not less than sixty days, to provide such service before any existing certificate is cancelled or a new certificate granted over the route or for the territory mentioned in the finding and order of, or hearing before, the commission." (Emphasis added.)
After public hearings, an attorney-examiner filed a report recommending that the application be granted to the extent of authorizing "the transportation of limestone in bulk or in packages or bags, from and to Meigs and Franklin townships, Adams County, Ohio, and the transportation of limestone in bulk from and to Hamer township, Highland County, Ohio."
No exceptions were filed to this recommendation.
Thereafter, the commission issued an order denying the application and denied a petition for rehearing. The cause is now before this court on appeal from the order of the Public Utilities Commission.
Messrs. George, Greek, King McMahon and Mr. A. Charles Tell, for appellant.
Mr. William B. Saxbe, attorney general, Mr. J. Philip Redick and Mr. Langdon D. Bell, for appellee.
So far as pertinent, the final order of the Public Utilities Commission reads:
"Section 4921.10, Revised Code, imposes upon an applicant for a certificate, the burden of establishing not only a public convenience and necessity for the authority sought, but the additional duty of proving by sufficient probative evidence, that the service furnished or available from existing transportation facilities in the territory is not reasonably adequate. This duty remains constant, despite the fact that a given proceeding may be unprotested. Here, the applicant's evidence sustained a need for the service proposed, but failed to establish the inadequacy of the service of existing carriers in the involved areas.
"A thorough search of the record made herein, reveals that the only evidence adduced on the issue of the adequacy of existing service was the statement of the supporting shipper that he knew of no common carrier authorized to perform the service proposed nor had he been solicited by any carriers. The commission is of the opinion that such statements, standing alone, are insufficient on which to predicate a finding of inadequacy of service. The records of this commission indicate that at the time of the hearing, two carriers held authority authorizing in part, the service proposed herein. * * *" (Emphasis added.)
We agree with the commission that Section 4921.10, Revised Code, imposes upon one, who applies for a certificate to operate as a motor transportation company over an irregular route, the burden of proving a public convenience and necessity for the authority sought. However, in our opinion, where public convenience and necessity for the authority sought has been established, the commission cannot (as its order indicates that it did in the instant case) base a denial of the application solely on a failure to prove the inadequacy of service of existing carriers, if there is no evidence in the record as to the service furnished by existing transportation facilities. We believe that this conclusion necessarily follows from the emphasized portions quoted above from Section 4921.10, Revised Code, as well as from our decision in Michele Transportation Co. v. Public Utilities Commission (1929), 121 Ohio St. 441, 169 N.E. 440.
By Section 4921.10, Revised Code, the commission is empowered to "grant a certificate only when the existing motor transportation * * * companies serving such territory do not provide the service required * * * to the satisfaction of the commission." That statute also states that "before granting any certificate the commission shall take into consideration other existing transportation facilities in the territory for which a certificate is sought."
However, unless the record shows that existing transportation facilities in the territory for which a certificate is sought provide a needed service, it would be impossible for this court to review a conclusion of the commission such as that reached in the instant case, although our statutes require us to determine whether the order of the commission is unlawful or unreasonable. See Section 4903.13, Revised Code, requiring us to base our determination "upon * * * the record." Where the commission refuses a certificate for the reason that services furnished by existing transportation facilities are adequate, the next sentence of that statute makes it clear that the record should show what those services are. That sentence requires the commission to refuse a certificate "if it appears from the evidence that" such "service * * * is reasonably adequate." (Emphasis added.)
Where neither the applicant nor any protestant offers any evidence as to service furnished by existing transportation facilities in the territory for which a certificate is sought and the commission is of the opinion that such service is reasonably adequate for the public convenience and necessity and proposes to deny an application for a certificate on that ground, the commission should produce evidence for the record as to such service.
In our opinion, the commission's finding that "the applicant's evidence sustained a need for the service proposed." when read in the context of its order, represents a finding "that public convenience and necessity requires such operation."
Since there is admittedly no evidence in the record that existing transportation facilities furnish the service which the applicant proposes, the order of the commission is unreasonable and unlawful and is, therefore, reversed; and the cause is remanded to the commission for further proceedings.
It may be added that the order of the commission appears on its face to be further unreasonable in that it indicates that the existing transportation facilities provide "authority authorizing in part, the service proposed herein." This would not seem to justify denying a certificate for the whole of the proposed service.
Order reversed.
ZIMMERMAN, TROOP, O'NEILL, SCHNEIDER and BROWN, JJ., concur.
HERBERT, J., concurs in paragraph two of the syllabus and in the judgment.
TROOP, J., of the Tenth Appellate District, sitting for MATTHIAS, J.