Ry. Co. v. Pub. Util. Comm.

• Decision Date: 25 May 1926
• Docket Number: 19588,19538,19584,19510,19592,19581,19524,19509,19589,19542,19576,19567,19574,19561
• Citation: 154 N.E. 239,115 Ohio St. 311
• Parties: Lake Shore Electric Ry. Co. v. Public Utilities Commission Of Ohio. Sohngen, Recr., v. Pub. Util. Comm. Hocking Valley Ry. Co. v. Pub. Util. Comm. C., D. & M. Electric Co. v. Pub. Util. Comm. C., C., C. & St. L. Ry. Co. v. Pub. Util. Comm. Western Ohio Ry. Co. v. Pub. Util. Comm. C., D. & M. Electric Co. v. Pub. Util. Comm. B. & O. Rd. Co. v. Pub. Util. Comm. New York Central Rd. Co. v. Pub. Util. Comm. Erie Rd. Co. v. Pub. Util. Comm. Columbus Ry., P. & L. Co. v. Pub. Util. Comm. Youngstown & S. Transp. Co. v. Pub. Util. Comm. Columbus & Zanes. Transp. Co. v. Pub. Util. Comm. Dayton & Cols. Transp. Co. v. Pub. Util. Comm.
• Court: Ohio Supreme Court

154 N.E. 239

115 Ohio St. 311

Lake Shore Electric Ry. Co. v. Public Utilities Commission Of Ohio. Sohngen, Recr., v. Pub. Util. Comm. Hocking Valley Ry. Co. v. Pub. Util. Comm. C., D. & M. Electric Co. v. Pub. Util. Comm. C., C., C. & St. L. Ry. Co. v. Pub. Util. Comm. Western Ohio Ry. Co. v. Pub. Util. Comm. C., D. & M. Electric Co. v. Pub. Util. Comm. B. & O. Rd. Co. v. Pub. Util. Comm. New York Central Rd. Co. v. Pub. Util. Comm. Erie Rd. Co. v. Pub. Util. Comm. Columbus Ry., P. & L. Co. v. Pub. Util. Comm. Youngstown & S. Transp. Co. v. Pub. Util. Comm. Columbus & Zanes. Transp. Co. v. Pub. Util. Comm. Dayton & Cols. Transp. Co. v. Pub. Util. Comm.

Nos. 19509, 19510, 19524, 19538, 19542, 19561, 19567, 19574, 19576, 19581, 19584, 19588, 19589 , 19592

Supreme Court of Ohio

May 25, 1926

Public Utilities Commission - Motor transportation companies - Certificate to operate over all streets and highways of state - Notice of application to be published in each county, when - Section 614-91, General Code - Certification upon irregular routes over all streets and highways of state - Unauthorized without proof of inadequacy of existing transportation facilities - Casual and unusual service not subject-matter of certification, when.

1.

By the provisions of Section 614-91, General Code, an applicant for a certificate to operate motor transportation over all the streets and highways of the state must give notice of the filing thereof by publication made once a week for three weeks in a newspaper of general circulation published at the county seat of each county in the state in or through which the applicant proposes to operate.

2.

A certificate for motor transportation of passengers upon irregular routes over all public highways, roads, and streets in the state of Ohio for the convenience of casual travelers over highways, roads, and streets already traversed by regular routes, is unauthorized, where it is not shown that the regular lines of transportation service are not furnishing reasonable facilities for such travel.

3.

Casual and unusual service such as heretofore has been rendered under private contract is not the proper subject matter of a certificate of public convenience and necessity.

The facts are stated in the opinion.

Messrs. Tolles, Hogsett, Ginn & Morley, for plaintiffs in error Lake Shore Electric Ry. Co. and Sohngen, Receiver.

Messrs. Wilson & Rector, for plaintiff in error Hocking Valley Ry. Co.

Mr. C. P. Stewart and Messrs. Wilson & Rector, for plaintiff in error Cleveland, C., C. & St. L. Ry. Co.

Mr. Wm. P. Maloney, for plaintiff in error C. D. & M. Electric Co.

Mr. J. B. Goeke, for plaintiff in error Western Ohio Ry. Co.

Messrs. Booth, Heating, Pomerene & Boulger, for plaintiff in error Baltimore & O. Rd. Co.

Mr. W. N. King, for plaintiff in error New York Cent. Rd. Co.

Messrs. Cook, McGowan, Foote, Bushnell & Burgess, and Messrs. Wilson & Rector, for plaintiffs in error Erie Rd. Co. and others.

Messrs. Johnson, Sharp, Schooler & Toland, for plaintiff in error Columbus Ry., Power & Light Co.

Mr. James M. Butler and Mr. Claude J. Bartlett, for plaintiffs in error Youngstown & Suburban Transportation Co. and Columbus & Zanesville Transportation Co.

Messrs. Eagleson & Laylin, for plaintiff in error Dayton & Columbus Transp. Co.

Mr. C. C. Crabbe, attorney general, and Mr. John W. Bricker, for defendant in error.

Mr. Beecher W. Waltermire, Mr. Earl R. Lewis, and Mr. Chas. S. Sheppard, for Buckeye Special Transit Co.

MARSHALL C. J.

This is an error proceeding from an order of the Public Utilities Commission. The Buckeye Special Transit Company, a corporation, on June 25, 1925, applied for a certificate of public convenience and necessity to operate motor transportation passenger service "over all public highways, roads and streets in the state of Ohio," an irregular route. Upon hearing, the application was granted. The pertinent parts of the order of the commission under review show that the applicant is located in Columbus, Ohio, and the commission finds "that there is a great and urgent need for, and that public convenience and necessity will be served by the establishment of the operation of a special, or irregular, service in the transportation of persons by motor vehicles." After reciting certain provisions of the statutes at length and the reasons for the commission's conclusions, the order was in the following language:

"Ordered: That, upon the payment to the treasurer of state of the taxes prescribed for the motor vehicles so to be used and the filing with this commission of the insurance policies required, a certificate be granted the Buckeye Special Transit Company to operate a motor transportation company, carrying passengers as a common carrier, upon irregular routes over all public highways, roads, and streets in the state of Ohio, subject to the rules and regulations of this commission and conditioned:

"(a) That no such operation shall be made between a point of origin and a point of destination which are located upon the route of an existing transportation company; and

"(b) That local subdivisions may make reasonable police regulations within their respective boundaries not inconsistent with the provisions of Sections 614-84 to 614-102 of the General Code of Ohio."

A large number of transportation companies, including steam railroads, electric railroads, and motor transportation companies, filed protests, and a number of them have prosecuted error to this court. By this error proceeding the order of the commission is challenged on both procedural and fundamental grounds. We shall not discuss all of those grounds in detail, but will refer to sufficient of them to support the reasons for the conclusions we have reached.

Notice of the filing of the application is in all cases required by Section 614-91, General Code, and that section is specific as to the kind and character of notice where the operation is between fixed termini or over a regular route. There are certain general requirements which are clearly applicable to all routes and proposed operations. Among such general provisions it is required:

"The applicant shall give notice of the filing of such application by publication made once a week for three weeks immediately prior to the date set for said hearing, in a newspaper of general circulation published at the county seat of each county in or through which the applicant proposes to operate, or in one newspaper published in and of general circulation throughout the territory in or through which the applicant proposes to operate. Such published notice shall state the fact that such application has been made, the route proposed to be operated, the number of motor vehicles to be used, the number of trips to be made daily, and the name and address of the applicant."

The applicant has sought to comply with this requirement by publishing notice in the Cincinnati Enquirer, the Cleveland Plain Dealer, the Columbus Dispatch, the Dayton Journal, and the Steubenville Herald Star. While it is very clear that the commission is only required to give written notice to all motor transportation companies, where the applicant seeks to operate between fixed termini or over a regular route, the protestants insist that no showing has been made that the proper publication has been made in all of the counties of the state.

Questions of the sufficiency of notice and of the kind and character of notice to be given are legislative problems, and, when the Legislature has spoken, the courts may not properly interfere unless a.question of due process is presented. Inasmuch as the operation is authorized in every county of the state and over every highway in the state, whether improved or unimproved, and over the streets of every city and village in the state, the statute cannot be said to have been complied with by publication made only in newspapers having general circulation in all the counties of the state, but publication must necessarily be made in some newspaper published at each of the county seats of the 88 counties of the state. The statute gives the alternative of publishing in newspapers published in each of the county seats or "in one newspaper published in and of general circulation throughout the territory in or through which the applicant proposes to operate." The applicant apparently realized that no single newspaper has general circulation in all the counties of the state and has sought to remedy this difficulty by publishing in five newspapers published in different sections of the state. The commission states in its order that there has been a substantial compliance With the law. As to whether a substantial compliance with the procedure provided by statute for the guidance of the commission is sufficient, counsel for the respective parties are at variance. In this case it cannot be said that there has been a substantial compliance, but rather it must be said that there has been a total failure to observe the requirements. It is urged by the applicant that it would be a matter of tremendous expense to make publication in a newspaper published at each county seat. It may be answered that the applicant is seeking a franchise covering a tremendous amount of territory. If the certificate has value in each of the counties of the state, the statute must be respected and that expense be incurred or any counties omitted must be eliminated from the application and the order. The statutory provisions as to notice are either mandatory or directory. To hold that they are directory would be to give the commission unlimited latitude and the procedure would thereby be rendered chaotic.

It is further claimed that the published notice is deficient by...