Ohio Transport v. Public Utilities Commission of Ohio

• Decision Date: 26 April 1957
• Docket Number: No. 13016.,13016.
• Citation: 243 F.2d 536
• Parties: OHIO TRANSPORT, Inc., Appellant, v. PUBLIC UTILITIES COMMISSION OF OHIO (Robert L. Moulton, Chairman, Ralph A. Winter and Edward J. Kenealy, Commissioners), Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

243 F.2d 536 (1957)

OHIO TRANSPORT, Inc., Appellant, v. PUBLIC UTILITIES COMMISSION OF OHIO (Robert L. Moulton, Chairman, Ralph A. Winter and Edward J. Kenealy, Commissioners), Appellees.

No. 13016.

United States Court of Appeals Sixth Circuit.

April 26, 1957.

Myron Epstein, New York City (Edward J. Hayes, Washington, D. C., Donald M. Hamilton, Sr., Columbus, Ohio, on the brief), for appellant.

Ralph N. Mahaffey, Columbus, Ohio (C. William O'Neill, Paul Tague, Jr., Columbus, Ohio, on the brief), for appellees.

Before ALLEN, MARTIN and STEWART, Circuit Judges.

ALLEN, Circuit Judge.

This appeal is addressed to a judgment of the District Court dissolving a preliminary injunction against appellee, Public Utilities Commission of Ohio, hereinafter called the Commission, and entering judgment in its favor in an action to enjoin the Commission from enforcing an order theretofore entered revoking appellant's intrastate irregular certificate and intrastate contract permit authorizing appellant to operate as a motor vehicle carrier within the State of Ohio.

The case arose out of the following facts which are undisputed: The Commission, after due citation and hearing in accordance with Ohio statutes, cancelled and revoked the certificate and permit of appellant corporation for violation of Ohio statutes with reference to the total weights prescribed and authorized to be carried in motor vehicle transportation under Sections 7246 and 7248-1, General Code of Ohio. Appellant, in accordance with Ohio statutes, appealed the decision of the Commission to the Supreme Court of Ohio, which affirmed the orders of the Commission, Ohio Transport, Inc., v. Public Utilities Commission of Ohio, 164 Ohio St. 98, 128 N. E.2d 22, 27.

The Supreme Court found:

"Examination of the record upon which the commission based its order of revocation discloses that appellant hauled approximately 900 shipments of steel in excess of the maximum gross weight prescribed by law; that 210 of these overloads were hauled during December 1952 alone, for an average of 7 overloads per day or 52.5 overloads per week; that a large proportion of these overloads exceeded 84,000 pounds and two of them were in excess of 90,000 pounds; that all but eight of citee\'s 35 drivers, interviewed by the highway patrol, acknowledged that they had knowingly hauled overloads during the period covered by the commission\'s citation; that both citee and citee\'s drivers had knowledge of these overloads; and that citee billed the consignees on the basis of these excessive weights."

Appellant claims that its constitutional rights are violated because it was not accorded the immunity provided by Section 4903.08 of the Revised Code of Ohio. This section reads as follows:

"No person shall be excused from testifying or from producing accounts, books, and papers, in any hearing before the public utilities commission , any public utilities commissioner, or any person appointed by the commission to investigate any matter under its jurisdiction, on the ground or for the reason that the testimony or evidence might tend to incriminate him, or subject him to a penalty or forfeiture. No such person shall be prosecuted or subjected to any penalty or forfeiture on account of, any transaction or matter concerning which he has testified or produced any documentary evidence. No person so testifying shall be exempted from prosecution or punishment for perjury in so testifying."

The cancellation of its certificate, appellant contends, constituted a forfeiture of its license in violation of Section 4903.08 and in violation of the Fourteenth Amendment to the United States Constitution. The District Court gave judgment for the Commission upon the ground that the immunity extended by the statute in terms is available "to the witness testifying" and not to the appellant corporation. This was the express holding of the Supreme Court of Ohio in Ohio Transport, Inc., v. Public Utilities Commission of Ohio, supra, 164 Ohio St. at page 106, 128 N.E.2d at page 28.

We think the judgment of the District Court is clearly correct, not only upon the ground stated, but upon other important grounds. The scope of the grant of immunity in Section 4903.08 and the status of the license granted by the Commission under a certificate of convenience and necessity raise a question of local law upon which the judgment of the highest state court of Ohio is controlling here.

The holding of the Supreme Court of Ohio that the revocation of a common carrier's permit does not constitute a penalty or forfeiture is established law in Ohio. A certificate to operate a motor vehicle carrier engaged in interstate or intrastate commerce confers no property rights. It is simply a revocable license. Scheible v. Hogan, 113 Ohio St. 83, 148 N.E. 581; Alspaugh v. Public Utilities Commission of Ohio, 146 Ohio St. 267, 65 N.E.2d 263; Ohio Transport, Inc., v. Public Utilities Commission of...