Cleveland, Columbus & Cincinnati Highway v. Public Utilities Commission

• Citation: 141 Ohio St. 634,49 N.E.2d 759
• Decision Date: 23 June 1943
• Docket Number: 29523.
• Court: United States State Supreme Court of Ohio
• Parties: CLEVELAND, COLUMBUS& CINCINNATI HIGHWAY, Inc., v. PUBLIC UTILITIES COMMISSION.

49 N.E.2d 759

141 Ohio St. 634

CLEVELAND, COLUMBUS& CINCINNATI HIGHWAY, Inc., v. PUBLIC UTILITIES COMMISSION.

No. 29523.

Supreme Court of Ohio

June 23, 1943

Appeal from the Public Utilities Commission.

Syllabus by the Court.

Where the Public Utilities Commission finds that public convenience and necessity require the service proposed by a motor transportation company which is an applicant for such a certificate and orders the expansion of the operations of another motor transportation company sufficient to provide the specified additional service upon and over the same route which that company is serving under its existing certificate of convenience and necessity, within sixty days thereafter such order affects a substantial right of the latter carrier and gives rise to a right of appeal under the provisions of Section 544, General Code.

This case is in this court on appeal from the Public Utilities Commission.

J D. Boak, doing business as City Transfer and Storage Company duly applied to the Public Utilities Commission for a motor transportation certificate of public convenience and necessity for the transportation of property over a regular route between Piqua and Dayton, Ohio, on U.S. Route 25.

Following a hearing duly had upon that application, to which the Cleveland, Columbus & Cincinnati Highway, Inc., which holds a certificate of public convenience and necessity authorizing transportation of property over the identical route above described, was a protestant, the commission, on February 8, 1943, found that public convenience and necessity required the service proposed by Boak and that the existing motor transportation service of appellant in the territory sought to be covered was inadequate to meet the public convenience and necessity. The essential portion of the commission's finding and order is as follows: 'That the applicant, J. D. Boak, d. b. a. City Transfer and Storage Company, of Troy, Ohio, is a proper party to hold a certificate of public convenience and necessity * * *.

'That a period of sixty days be, and hereby is, given the said Cleveland, Columbus & Cincinnati Highway, Inc., to expand its present operations to provide such additional service upon and over the routes which it now serves under its said certificate, and a period of five days thereafter within which to report to this commission thereupon, else the application herein shall be granted.'

The Cleveland, Columbus & Cincinnati Highway, Inc., duly filed its application for rehearing, which was overruled by the commission. Thereupon appeal was perfected in this court from the finding and order of the commission.

D. H. Armstrong, of Columbus, and Paul J. Hergenroeder, of Cleveland, for appellant.

Thomas J. Herbert, Atty. Gen., and Kenneth L. Sater, of Columbus, for appellee.

MATTHIAS Judge.

Appeals to this court from the Public Utilities Commission are authorized by the provisions of Section 544, General Code, which is as follows: 'A final order made by the commission shall be reversed, vacated or modified by the supreme court on appeal, if upon consideration of the record such court is of the opinion that such order was unlawful or unreasonable.'

The specific question presented by the motion to dismiss the appeal is whether the order of the commission in question is a final order. The term 'final order' is defined by Section 12223-2, General Code, as follows: 'An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, * * * is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial, as provided in this title.'

It is to be observed that a distinction is made between an order 'in an action' and an...