Opinion
No. 20822
Decided March 14, 1928.
Public Utilities Commission — Motor transportation companies — Operator, certificated by affidavit, increased equipment without application and notico — Complainant entitled to hearing, and order striking complaint from files reversed.
ERROR to the Public Utilities Commission.
On the 16th day of May, 1927, the plaintiff in error filed with the Public Utilities Commission of Ohio a complaint against the Salisbury Transportation Company, of which the following is a copy:
"Now comes the Stark Electric Railroad Company, a corporation, duly organized and existing under and by virtue of the laws of the state of Ohio, engaged in the operation of a line of electric railroad between the city of Salem, Ohio, through the city of Alliance to the city of Canton, Ohio, and says that it has so operated said line of electric railway for the past twenty-four years.
"Protestant says that on or about September, 1923, one Sadie Salisbury filed an affidavit with the Public Utility Commission of the state of Ohio to obtain a certificate of public convenience and necessity, and that said affidavit among other things contained the statement that she, the said Sadie Salisbury, was on the 28th day of April, 1923, operating in good faith over the route described in said affidavit, said route being between Alliance, Ohio, and Canton, Ohio, and further stated therein that she was operating at said time and over said route with the following physical property: One 18-passenger service bus.
"Protestant says that on or about the 11th day of December, 1923, the Public Utility Commission of Ohio duly granted a certificate to the said Sadie Salisbury by virtue of the aforesaid affidavit.
"Protestant further says that on or about the 12th day of January, 1924, the said Sadie Salisbury duly filed a certain indenture of lease with the Public Utility Commission of Ohio, copy of which is now on file in the records of this commission, wherein it appears that she, the said Sadie Salisbury, had acquired by virtue of said lease, the use of a certain 30-passenger 'Ace' bus which she apparently desired to operate over said certificated route No. 53; that thereafter, to wit, on the 14th day of March, 1924, the Public Utility Commission of the state of Ohio, without notice to other carriers and transportation companies operating in the vicinity through which said line passes and without requiring the publishing of notice thereof, and without application having been made therefor, issued a formal certificate of public convenience and necessity to the said Sadie Salisbury and included therein, in addition to the 'service' 18-passenger bus described in applicant's affidavit for certificate of public convenience and necessity, the authority to operate the 'Ace' bus hereinbefore referred to and described in the aforementioned lease.
"Protestant says that the said Sadie Salisbury under her sworn statement and under the undisputed records of the commission was not operating said 'Ace' bus in good faith on the 28th day of April, 1923; that said 'Ace' bus referred to in the certificate of public convenience and necessity thereafter issued to the said Sadie Salisbury was acquired by the said Sadie Salisbury after said certificate had been granted by the Public Utility Commission of Ohio; that no application was ever filed by the said Sadie Salisbury for authority to add additional equipment as provided by law; and that no notices were published in a newspaper of general circulation throughout the county of Stark, and no notices were served upon the transportation companies operating within said territory; and that, by reason thereof, said certificate of public convenience and necessity, so far as it authorized the said Sadie Salisbury to operate other equipment than one 'service' 18-passenger bus, as described in her said affidavit to obtain a certificate of public convenience and necessity, is wholly void and of no effect; and that the operation of said additional equipment by virtue of said certificate of public convenience and necessity so erroneously issued is unlawful.
"Protestant further says that, by reason of the aforesaid, the Salisbury Transportation Company, successors of the said Sadie Salisbury, is illegally operating equipment on said line; that the said certificate was issued without authority of law, and by reason thereof is wholly void and of no effect in so far as it attempted to authorize the operation of the 'Ace' bus heretofore mentioned herein.
"Wherefore, protestant prays that said certificate of public convenience and necessity No. 53 issued in the name of Sadie Salisbury and later by the order of the Public Utility Commission of Ohio duly transferred to the Salisbury Transportation Company be so amended so as to compel the Salisbury Transportation Company to operate only such equipment as the said Sadie Salisbury was operating in good faith on the 28th day of April, 1923, to wit, one 'service' 18-passenger bus and any additions thereto which the Public Utility Commission of Ohio have duly and legally authorized, or that same be canceled, nullified, and held for naught; that your honorable commission shall cause such notices to be issued and such hearings had as are contemplated by statute; and that, upon the final hearing hereof, an order issue compelling the said the Salisbury Transportation Company to forthwith suspend said illegal and unlawful operation, and for such further and other relief as protestant may be entitled to in the premises."
On the 7th day of October, 1927, the Public Utilities Commission made the following entry:
"The commission having under consideration a certain pleading, filed with the commission on or about May 10, 1927, and a certain amended pleading, filed on or about May 16, 1927, wherein The Stark Electric Railroad Company, as Complainant, v. The Salisbury Transportation Company, as Defendant, prays the revocation of certificate of public convenience and necessity No. 53, held by the said defendant, upon the ground and for the reason that the predecessor in title to said certificate of public convenience and necessity No. 53 had, prior to the decision by the Supreme Court of Ohio of the so-called Armstrong Case ( The Northern Ohio Power Light Company, Plaintiff in Error v. The Public Utilities Commission of Ohio, Defendant in Error, [ 113 Ohio St. 93, 148 N.E. 584], decided June 9, 1925), made certain substitutions in the equipment operated under said certificate of public convenience and necessity No. 53 without application to and an order of consent from this commission.
"And it appearing that this commission, in considering the valid use of motor-propelled equipment by motor transportation companies should not go behind the aforesaid date of the announcement by the Supreme Court of its decision in said Armstrong Case where the public utility had complied with the requirements of the commission as the Motor Transportation Act was then administered, it is
"Ordered, that said complaint and said amended complaint of The Stark Electric Railroad Company v. The Salisbury Transportation Company be, and hereby they are, stricken from the files of the commission."
An application for rehearing was duly filed, and was overruled. Error is prosecuted here.
Messrs. Herbruck, Shetler, Melchior Roach, for plaintiff in error.
Mr. E.C. Turner, attorney general, and Mr. A.M. Calland, for defendant in error.
The complaint stated a case for revocation or modification of the certificate therein designated. Cincinnati Traction Co. v. Public Utilities Commission, 113 Ohio St. 668, 150 N.E. 308. The complainant therefore was entitled to be heard in support thereof. The order of the Public Utilities Commission of Ohio striking the complaint from its files is reversed, and the cause remanded to the Public Utilities Commission for hearing upon the complaint and for an order in accordance to law.
Order reversed.
MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.