Cleveland v. Pub. Util. Comm.

Decision Date18 March 1936
Docket Number25801
Citation200 N.E. 765,130 Ohio St. 503
PartiesCity Of Cleveland Et Al. v. Public Utilities Commission Of Ohio Et Al.
CourtOhio Supreme Court

Public Utilities Commission - Motor transportation companies - Certificate of public convenience and necessity - Consent of municipalities not necessary unless immediately contiguous - Section 614-86, General Code - Municipal regulatory rights subordinated to authority granted Public Utilities Commission - Section 614-84 et seq., General Code - Powers of charter city not impaired - Sections 3 and 7, Article XVIII constitution - Charter city powers delegated subject to general laws.

1. A conditional certificate of convenience and necessity was granted by the public Utilities Commission of Ohio to a motor transportation company for a route from the municipal corporation of Bedford, through the municipal corporations of Maple Heights and Garfield Heights and thence through the City of Cleveland to the Public Square therein. Maple Heights is immediately contiguous to Bedford and Cleveland. Garfield Heights is immediately contiguous to Cleveland and Maple Heights, but is not immediately contiguous to Bedford and there is no contiguity between Bedford and Cleveland. Held The Public Utilities Commission had jurisdiction and power to grant such conditional certificate without the consent of the several municipal corporations, inasmuch as such route does not come within the exception included in the last clause of Section 614-86, General Code, as each and all the municipal Corporations through which such route passes are not immediately contiguous.

2. The General Assembly of Ohio has subordinated the rights of municipalities to regulate motor transportation lines within their limits to the authority granted the Public Utilities Commission of Ohio by the Motor Transportation Act, Sections 614-84 to 614-102a, General Code, inclusive.

3. Under the Motor Transportation Act the Public Utilities Commission of Ohio had power and authority to grant such certificate of convenience and necessity and fix the terminus in the city of Cleveland at the Public Square without the consent of the city of Cleveland, and in so doing took nothing from the city of Cleveland that was granted it as a charter city by virtue of Section 3 and 7 of Article XVIII of the Constitution of Ohio, as thereunder the city of Cleveland has the authority to exercise all powers of local self-government and to adopt and enforce within its limits such local police, sani- tary and other similar regulations as are not in conflict with general laws.

ERROR to the Public Utilities Commission.

This case comes before the Supreme Court upon a joint petition in error complaining that a final order of the Public Utilities Commission dated November 20, 1935, authorizing The Cleveland Southeastern Bus Company to operate as a common carrier of passengers over a regular route between fixed termini within the cities of Cleveland, Garfield Heights, Maple Heights and Bedford exclusively, is not within the jurisdiction of the commission, is unreasonable and unlawful, and that there is manifest error in the proceedings before the commission and in such order.

The plaintiffs in error, the City of Cleveland and The Cleveland Railway Company, on December 6, 1935, applied for a rehearing before the commission and specified the points of error unlawfulness and unreasonableness in such order substantially as in their pending petition in error. The application for rehearing was overruled on December 31, 1935, and the petition in error was filed in this court on January 7, 1936.

The proceedings before the Public Utilities Commission were known as its case No. 7894, and the authority granted The Cleveland Southeastern Bus Company is known as Certificate of Public Convenience and Necessity No. 5320.

In accordance with the application of the bus company, the certificate describes the route as follows:

"Beginning at the corner of Northfield and Forbes Road in the City of Bedford on State Route No. 8; thence on Union Street to the intersection of State Route No. 8 with State Route No. 14; thence over State Route No. 14 through the Cities of Bedford Maple Heights, Garfield Heights and Cleveland to the Public Square in the City of Cleveland; thence on State Route No. 2 (Superior Avenue) to the Greyhound Terminal at East 9th Street and Superior Avenue; thence south on East 9th Street to the intersection of East 9th Street with State Route No. 14 (Broadway Avenue)."

The certificate imposes the following conditions:

"Conditioned that no passengers shall be transported whose entire ride is between any two points within the City of Cleveland, Ohio between any two points with in City of Maple Heights, and between a point in the City of Cleveland and a point in the City of Maple Heights and vice versa. Conditioned that local subdivisions may make reasonable local police regulations within their respective boundaries not inconsistent with the provisions of Sections 614-84 to 614-102 of the General Code of Ohio."

The order of the commission of November 20, 1935, imposed the following two additional conditions:

"Conditioned upon the revocation of Certificate No. 2668 now held by the applicant, providing for the maintenance and operation of a motor transportation company carrying persons as a common carrier for hire upon and over a part of said route, which said Certificate No. 2668 has been renounced by the applicant upon condition that this application be granted.

"* * * and conditioned further that the City of Cleveland may impose such reasonable police regulations as it may see fit with respect to the streets to be traversed within the City of Cleveland."

The hearing upon the application was held June 7, 1935. Prior to the hearing, The Cleveland Railway Company, on June 1, 1935, and the city of Cleveland, on June 5, 1935, filed motions to continue the hearing until evidence should be submitted that the city of Cleveland had consented to the operation of such bus service. At the beginning of the hearing the plaintiffs in error objected to further proceedings upon the application, on the grounds that the commission was with- out jurisdiction of the proposed operation and that evidence of consent of the city of Cleveland to the operation had not been obtained. The city of Maple Heights joined in the same motion for the reasons that the commission was without jurisdiction and that the consent of Maple Heights to the operation had not been obtained. These motions were held and subsequently denied in the order of November 20, 1935.

During the hearing on the merits of the application these plaintiffs in error protested against allowance of the application upon the further grounds that the present service between Bedford and Cleveland furnished by common carriers of passengers is reasonably adequate, that the applicant had failed to prove necessity for the operation, and that protestants had proved the operation would be contrary to public convenience and necessity. These protests were overruled by the order of November 20, 1935.

Plaintiffs in error claim:

1. That the order is contrary to the decision of this court in the case of City of Cleveland v. Public Utilities Commission, 126 Ohio St. 210, 184 N. E., 851.

2. The jurisdiction of the commission is statutory only and the Motor Transportation Act excludes the commission of jurisdiction of such route and operation. State, ex rel. Thomas, v. Thomas, Judge, 121 Ohio St. 450, 169 N. E., 454, and New York Central Rd. Co. v. Public Utilities Commission, 123 Ohio St. 370, 175 N. E., 596, are relied on to establish the law that the Public Utilities Commission has only such jurisdiction as is conferred by statute.

The Motor Transportation Act is included in Sections 614-84 to 614-102a, General Code, and the following portions of the Act are pertinent:

Section 614-86, General Code, provides: "The public utilities commission of the state of Ohio is hereby vested with power and authority to supervise and regulate each such motor transportation company in this state; * * *."

Section 614-84 (a) provides: "The term 'motor transportation company,' when used in this chapter, * * * shall not include any * * * corporation, * * * in so far as they own, control, operate or manage a motor vehicle or motor vehicles used for the transportation of persons or property, or both, and which are operated exclusively within the territorial limits of a municipal corporation, or within such limits and the territorial limits of municipal corporations immediately contiguous thereto * * *."

3. The route and operation involved in this case are entirely within the city of Maple Heights and municipal corporations immediately contiguous thereto, and by virtue of Section 614-84, General Code, the commission has no jurisdiction.

4. That unincorporated county territory must be involved on the route before the commission has jurisdiction. The following cases are cited to support this contention: New York Central Rd. Co. v. Public Utilities Commission, supra; State, ex rel. Thomas, v. Thomas, Judge, supra; Cincinnati Traction Co. v. Public Utilities Commission, 113 Ohio St. 618, 150 N. E., 81; Coney Island Motor Bus Co. v. Public Utilities Commission, 115 Ohio St. 47, 152 N. E., 25, and State, ex rel. Mahoning Bus Co., v. Gessner, Judge, 114 Ohio St. 652, 151 N. E., 751.

It is claimed that the General Assemble sought to distinguish between suburban and interurban transportation lines, when Section 614-84, General Code, was amended by inserting the word "immediately" before the word "contiguous" (111 Ohio Laws, 19).

5. Even if the commission had jurisdiction to entertain and grant the application, the applicant would ...

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