Western Reserve Transit Authority v. Public Utilities Commission ( 1976 )

CORRIGAN. J.

7.

The propositions of law advanced for the appeal to this court by Western Reserve, urging that the opinion and order of the commission was unreasonable and unlawful, are twofold:

“I. Before granting any ■ certificate of public convenience and necessity to a motor transportation company the Public Utilities Commission shall take into consideration other existing transportation facilities in the territory for which a certificate is sought, including existing transportation facilities not regulated by the commission”; and,

‘‘II. When the Public Utilities Commission, in authorizing the amendment of a certificate of public convenience and necessity, fails to take into consideration other existing transportation facilities in the territory for which the certificate is sought, such amendment should be set aside. ’ ’

These two grounds seem to enlarge the bases of the complaint originally filed with the commission, and, in another respect, to retreat significantly from certain allegations in that complaint. Our function, in an appeal of this kind, is to pass on the reasonableness and lawfulness of the commission’s opinion and order.

In its complaint, Western Reserve alleges that Columbiana “not only failed and neglected to advise the commission that complainant rendered service along said route, but affirmatively concealed said fact * * V’ Complainant further alleged that such action or inaction on the part of the respondent “induced” false findings of fact made by the commission.

The commission disagreed with complainant that Columbiana misled the commission. -It1 found no fraud was shown on the part of Columbiana, and it is our holding that this was a reasonable and lawful conclusion from the record. Columbiana had no obligation under R. C. 4921.10 to present evidence, at the hearing on its application, about the service of other existing transportation facilities. See Schwerman Trucking Co. v. Pub. Util. Comm. (1967), 10 Ohio St. 2d 253.

Similarly, the record does not support any intimation of a fraudulent representation of the facts on the part of Columbiana. The sole proprietor of Columbiana, Clayton C. Dyke, testified at the July 19, 1972, hearing as follows:

“Q. All right. Now, to your knowledge are there any other bus lines operating in that seven miles, under the Public Utilities Commission of Ohio?

“A. No service there under the Public Utilities.”

Later, Mr. Dyke testified that:

: “Q. You stated that you are the only bus service over your seven mile route

“A. Under Public Utilities.”

Again, Mr. Dyke answered to questions at the hearing:

“Q. Mr. Dyke, can you state why it is that you need this restriction removed?

“A..I need the restriction removed in order to try to increase the revenue to make it — the operation of this business profitable.

“ Q. At the present time are you operating this line at a loss?

. ■ “A Have been operating for the last two years at a loss.

‘ ‘ Q. And is it getting worse as you go on as far as your profit and loss figure?

“ A- It is. decreasing, approximately, 50 to 100 a year.

‘ ‘ Q. And what will be the consequences if you are not successful in getting this restriction removed?

“A. There will be a loss of service that we already have... "

“Q. Well, what will you have to do?

, “A. I. won’t—

“Q. Would you have to curtail your service?

“A. I’ll probably have to go out of business altogether # * #

“Mr. Dickey: One more question. Mr. Dyke, how many passengers do you normally carry, per day, now on your complete route? :

■ , “ The Witness: 45 to 50. passengers.

“Mr. Dickey: All right, in the event you might curtail your bus or go out of business completely, is there another service available to them; at the present time?

“The Witness: No * * *.”.(Emphasis added.)

These answers of the owner of Columbiana are forthright and clear. They are not susceptible to an interpretation of deception. Dyke specifically is referring to regulated transportation companies. The commission had the right to accept the answers.

Based upon the original record before it, the commission reasonably and lawfully found that Columbiana’s application was in proper form; that notice had been published for three consecutive weeks in a newspaper of general circulation in Columbiana County; that Columbiana’s certificate was in good standing; that passengers had taken advantage of Columbiana’s new service while it was operating under temporary authority; and that public convenience and necessity would be served by the removal of the restriction from Columbiana’s certificate.

In these respects the opinion and order of the commission were also reasonable and lawful, as were its conclusions on the claim of concealment and/or fraud by Columbiana, and disposed of the original complaint of Western Reserve. It is totally unnecessary for us to pass on any other question suggested.

The order of the commission is affirmed as being reasonable and lawful.

Order affirmed.

Celebeezze, W. BeowN and P. BrowN, JJ., concur. • 0’Neill, C. J., Herbert and SterN, JJ., dissent.