Grubb v. Public Utilities Commission

• Decision Date: 18 May 1929
• Docket Number: No. 627.,627.
• Citation: 33 F.2d 323
• Parties: GRUBB v. PUBLIC UTILITIES COMMISSION OF OHIO et al.
• Court: U.S. District Court — Southern District of Ohio

33 F.2d 323 (1929)

GRUBB v. PUBLIC UTILITIES COMMISSION OF OHIO et al.

No. 627.

District Court, S. D. Ohio, E. D.

May 18, 1929.

John F. Carlisle and Frank M. Raymond, both of Columbus, Ohio, and E. D. Ricketts, of Logan, Ohio, for plaintiff.

Gilbert Bettman, Atty. Gen., and T. J. Herbert, of Cleveland, Ohio, for Public Utilities Commission.

Blair & Ball, of Portsmouth, Ohio, for Cannon Ball Transportation Co. and Interstate Motor Transit Co.

A. R. Johnson, of Ironton, Ohio, for Ohio Valley Bus Co.

Miller & Searl, of Portsmouth, Ohio, for Portsmouth Public Service Co.

Before MOORMAN and HICKENLOOPER, Circuit Judges, and HOUGH, District Judge.

HOUGH, District Judge.

The plaintiff, J. P. Grubb, filed his complaint in equity, to restrain and prevent the enforcement of an order of the Public Utilities Commission of Ohio, which order prohibited plaintiff as a common carrier from operating motorbusses for hire in interstate commerce between Portsmouth, Ohio, and South Portsmouth, Ky., and return, crossing and recrossing the bridge over the Ohio river, connecting said municipalities, which was part of a route from Columbus, Ohio, through the states of Ohio, Kentucky, and West Virginia; and for further enjoining all the defendants from interfering with the operation of plaintiff's automobile busses while traveling said route, and particularly crossing and recrossing the river bridge and approaches thereto between Portsmouth, Ohio, and South Portsmouth, Ky. The suit is brought under paragraphs 1 and 8 of section 24, as amended, of the Judicial Code of the United States (28 USCA § 41, pars. 1, 8). He claims that the order of the Public Utilities Commission of Ohio is an unlawful exercise of police powers, and is a prohibition of interstate commerce and an unwarranted obstruction of commerce between states and contrary to the commerce clause of the Constitution of the United States, to wit, section 8 of article 1 of said Constitution.

On January 23, 1928, Grubb filed application with the Public Utilities Commission of Ohio, for a certificate of convenience and necessity, describing in detail the route above mentioned, which application was heard by the commission on March 13, 1928. On April 2, 1928, the application was granted and allowed by the commission, except the loop from Portsmouth, Ohio, across the river bridge to South Portsmouth, Ky., and return, which was by said order in effect disallowed. Subsequently an application for a rehearing was filed, and on the 17th of April, 1928, this application was overruled.

The plaintiff began this suit on the 20th of April, 1928, and on May 31, 1928, he filed in the Supreme Court of Ohio his petition in error, seeking to reverse the Public Utilities Commission in its refusal to permit him to cross and recross the bridge between Portsmouth and South Portsmouth (544, Gen. Code). Among other errors complained of in the petition in error, the plaintiff says that the part of the order of the commission refusing permission to cross and recross between the two municipalities is contrary to law, and that it denies to him the rights, privileges, and immunities guaranteed him as a citizen of the United States under the Fourteenth Amendment to the Constitution of the United States, and is in direct violation of section 8, art. 1, of the Federal Constitution, granting power to Congress to regulate commerce among the several states, and is a prohibition of, burden on, and an unlawful interference and restriction to, interstate commerce.

The review to the Supreme Court of Ohio was argued and submitted to that court on October 3, 1928, and on November 14, 1928, the Supreme Court affirmed the Public Utilities Commission.

The defendants in this case other than the Public Utilities Commission, and except the public peace officers named as defendants, filed their answers to the bill of complaint, denying among other things the unlawfulness and unconstitutionality of the action and final order of the commission, wherein it failed and refused to include, in the certificate of convenience and necessity issued, that part of the route applied for over the river bridge and between Portsmouth and South Portsmouth. The case was heard by the court upon the pleadings, proof, and argument, and taken under advisement.

Subsequently, and after the announcement of the decision of the Supreme Court of Ohio, the defendants asked and were granted leave to file their separate supplemental answers, and the defendant Public Utilities Commission, upon leave granted, filed its original answer, all pleading the decision and judgment of the Supreme Court of the State upon review of the finding and order of the Public Utilities Commission.

Later, a further hearing was had in the instant case, wherein evidence was offered and received, substantiating the allegations of the supplemental answers. There is then before this court the transcript and record of the case that was before the Supreme Court, and upon which that court arrived at its judgment.

We are therefore confronted with the question as to whether the disposition of the case by the Supreme Court (Grubb, etc., and Interstate Motor Transit Co. v. Public Utilities of Ohio, 119 Ohio St. 264, 163 N. E. 713) is a bar in this court; that is to say, whether that court's judgment is res adjudicata or an estoppel in this court. This question is entirely independent of the question of the jurisdiction of this court and one lately made by supplemental pleading and proof.

It is urged by the plaintiff that after the final action of the Board of Public Utilities, he was entitled to choose his own forum. We may assume that he is correct in that view, but it seems that he has gone further and chosen more than one forum. He selected this court on April 20th, when he filed his bill of complaint, and then chose the Supreme Court of Ohio when he filed his petition in error on May 31st. As to the latter selection, his right to review is provided by section 544, Gen. Code, as follows: "A final order made by the Commission shall be reversed, vacated, or...