D.G. & U. Truck Lines v. Public Utilities Commission

• Decision Date: 11 February 1953
• Docket Number: Nos. 32784,33089,s. 32784
• Citation: 49 O.O. 477,110 N.E.2d 587,158 Ohio St. 564
• Parties: , 49 O.O. 477 D. G. & U. TRUCK LINES, Inc., et al. v. PUBLIC UTILITIES COMMISSION (two cases).
• Court: Ohio Supreme Court

Page 564

158 Ohio St. 564

110 N.E.2d 587, 49 O.O. 477

D. G. & U. TRUCK LINES, Inc., et al. v. PUBLIC UTILITIES COMMISSION (two cases).

Nos. 32784, 33089.

Supreme Court of Ohio.

Feb. 11, 1953.

Syllabus by the Court.

1. An application for rehearing of an order of the Public Utilities Commission granting an amendment to a certificate authorizing a motor transportation company to transport goods over the highways, which application sets forth concisely the facts found by the commission and which claims that 'the commission erred in unlawfully finding and declaring that public convenience and necesity require an amended and additional certificate' authorizing the applicant to serve 'any of the 51 points concerning which no evidence * * * of any convenience or necessity to be served was shown,' complies with the requirement of Section 543, General Code, that 'such application shall set forth specifically the ground or grounds on which the applicant considers said decision or order to be unreasonable or unlawful.'

2. Where the Public Utilities Commission upon application finds that public convenience and necessity require the additional service proposed by a motor transportation company and orders a motor transportation company holding an existing certificate of public convenience and necessity over the same route to provide specified additional service within sixty days thereafter, such order affects a substantial right of the latter carrier and is appealable under the provisions of Section 544, General Code. Cleveland, Columbus & Cincinnati Highways, Inc., v. Public Utilities Commission, 141 Ohio St. 634, 49 N.E.2d 759, approved and followed.

3. 'Necessity' for motor transportation service as contemplated by the Motor Transportation Act is not synonymous with 'convenience' or alternative thereto, and the provision, that the Public Utilities Commission must find 'convenience and necessity' as a prerequisite to the issuance of a certificate to a motor transportation company to transport property over the highways of this state, requires evidence of a definite need of the public for such transportation service. Canton-East Liverpool Coach Co. v. Public Utilities Commission, 123 Ohio St. 127, 174 N.E. 244, and A. & T. Motor Freight, Inc., v. Public Utilities Commission, 125 Ohio St. 617, 184 N.E. 11, approved and followed.

4. Where, in a hearing on an application by a motor transportation company to so amend its certificate of public convenience and necessity as to permit such company to transport property to and from all points in a designated county, the evidence adduced supports a finding of convenience and in several instances necessity at only six of the 45 incorporated and unincorporated towns and villages in said county, and that 31 of such communities including those six have regular or irregular certificated service, of which no complaint was made, an order of the Public Utilities Commission granting such application on the ground that each community is entitled, as a matter of policy, to both a regular and irregular certificated service is in disregard of the established public policy of this state that no more motor trucks or busses be placed on the public highways than the public necessity requires and is unreasonable and unlawful. Modern Motor Express, Inc., v. Public Utilities Commission, 154 Ohio St. 271, 95 N.E.2d 764, approved and followed.

Both of these cases involve orders of the Public Utilities Commission granting an application of Harry B. Wilson, Middleton, Ohio, to amend certificate No. 2133 authorizing him 'to transport property in intrastate commerce on call of the public over irregular routes from and to' 'Greenville, Ohio; also to transport household goods, office furniture and fixtures upon and over irregular routes to and from any point in Darke county, Ohio,' 'restricted against service as to household goods, office furniture and fixtures from or to any locality in Darke county, Ohio, other than Greenville, where van equipment is operated by a certificated operator.'

The amendment grants authority to Wilson for the 'transportation of property from and to Darke county, Ohio (except Greenville, Ohio).' The effect of the amendment is to permit Wilson to transport goods over irregular routes from and to any point in Darke county.

Hearing on the application was by an attorney examiner. The appellants, D. G. & U. Truck Lines, Inc., hereinafter referred to as D. G. U., and The Commercial Motor Freight, Inc., hereinafter referred to as Commercial, appeared in protest to the granting of the amended certificate. D. G. U. is the holder of certificate No. 2253 which authorizes it 'to transport property in intrastate commerce on call of the public, over irregular routes from and to Greenville, Ohio.' It is also the holder of regular-route certificate No. 2244 permitting operation over specified highways in Ohio, including Ohio highways Nos. 49, 71, 503 and 722 and county roads between Union City and Dayton, serving 11 communities in Darke county, namely, abbottsville, Arcanum, Coletown, Gordon, Greenville, Hillgrove, Ithaca, Jays, Pitsburg, Union City and Weimers Mill.

Commercial is the holder of certificate No. 2588 which authorizes it 'to transport property in intrastate commerce on call of the public, over irregular routes from and to Versailles [Darke county], Ohio.' It is also the holder of regular-route certificate No. 300 permitting operation over specified highways in Ohio including, in Darke county, highways Nos. 47, 71, 118, 121, 185, 242, 716 and 721, U. S. Highways Nos. 36 and 127 and county roads, and under authority of said regular-route certificate serves the towns of Ansonia, Beamsville, Bradford, Brock, Burkettsville Castine, Dawn, Fort Jefferson, Frenchtown, Gettysburg, Greenville, Horatio, Landis, New Harrison, New Madison, New Weston, North Star, Osgood, Painters Creek, Pikeville, Rossburg, Stelvideo, Versailles, Webster, Willowdell and Yorkshire, all of which are located in Darke county. Commercial interchanges shipments to or from Arcanum by way of D. G. U. at Dayton.

There are listed in the application 57 communities in Darke county, to 31 of which D. G. U. and Commercial furnish service under either their regular or irregular certificates.

The applicant offered evidence in support of his application to amend his certificate. The testimony was summed up by the attorney examiner in his report to the commission. Most of it related to the need for service at Arcanum, population 1,600, Ansonia, population 900, and New Madison, population 900. No evidence was offered in regard to the transportation situation at Versailles or any other of the communities in the county, although the applicant had solicited the testimony of 51 shippers only nine of whom appeared and testified. Those testifying were from the city of Greenville and the villages of Arcanum, Ansonia, Dawn, Stelvideo (one witness), New Madison, and Osgood (one witness). Most of the witnesses, who testified in favor of the application, made no complaint of present service, other than to indicate a desire for additional and competitive service.

In a discussion of the evidence the attorney examiner stated that the territory sought to be served by the applicant does not have available irregular-route common-carrier service for the transportation of general commodities; that in numerous instances irregular-route service would be a convenience and in several instances a necessity for the proper conduct of the businesses of localities involved; and that 'it has been the somewhat general rule followed by the commission that a community is entitled to two types of service--a regular route service which contemplates service at stated times, and an irregular route service whereby the public can have the benefit of service on call when needed.'

The attorney examiner recommended that a 60-day order be issued to the holders of certificates therein listed so that they might expand their service in the territory. The list includes Commercial's irregular certificate No. 2588 but does not include its regular certificate or either of the certificates owned by D. G. U.

Exceptions were filed by the appellants and overruled by the commission which proceeded to consider Wilson's application. The commission adopted the report of the attorney examiner, found that public convenience and necessity for the amendment exist and issued an order giving the named certificated operators a 60-day period within which to expand their present operations to provide additional service on the routes for which they hold certificates. An application for rehearing filed by the appellants was overruled, and an appeal was thereupon perfected to this court from the issuance of the 60-day order, which appeal is docketed herein as case No. 32784.

While that appeal was pending in this court, the appellants filed reports with the commission showing that D. G. U. and Commercial each had expanded its operations in accordance with the order of the commission, and a hearing was had on such report before an attorney examiner. Objection was made by Wilson to the submission of such compliance report on the part of D. G. U. on the ground that it had not been included in the list of companies to which the 60-day order was issued, and objection was made by Wilson to the compliance report of Commercial so far as it relates to improvements made in the service under Commercial's regular-route certificate.

The applicant tendered testimony of shippers who showed they were unaware that Commercial was operating under an irregular certificate through Versailles, the appellants having objected to any evidence at such hearing on the question of public convenience and necessity.

The attorney examiner found that D. G. U. was not entitled to an opportunity under the 60-day order to...