65 N.E.2d 68 | Ohio | 1946
The Public Utilities Commission filed a motion to dismiss this appeal for the reason that the order of the commission is not a "final order," within the contemplation of Section 544, General Code, from which an appeal may be taken.
Section 544, General Code, provides:
"A final order made by the commission shall be reversed, vacated or modified by the Supreme Court on appeal, if upon consideration of the record such court is of the opinion that such order was unlawful or unreasonable."
Section 12223-2, General Code, reads in part:
"An order affecting a substantial right in an action, when in effect it determines the action and prevents *231 a judgment, or an order affecting a substantial right made in a special proceeding, * * * is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial, as provided in this title."
In Cleveland, Columbus Cincinnati Highway, Inc., v. PublicUtilities Commission,
Counsel in the present case agree that a "special proceeding" was before the Public Utilities Commission, but are not in accord that a "final order" was entered by the commission. The appellant herein contends that the order is one "affecting a substantial right," but the appellee insists that nothing in the order affects a substantial right of the company which had invoked the jurisdiction of the commission to determine the reasonableness of the rates and service, and that the commission issued a preliminary order prior to the rate litigation contemplated by the complaint and appeal which is still pending before the Public Utilities Commission.
Counsel for appellant urge that the refusal of the Public Utilities Commission to determine whether Ordinance No. 198-1944 violates Section 4226, General Code, insofar as the ordinance seeks to revive any part of Ordinance No. 404-1941 by reference only, affects a substantial right of appellant. Such counsel contend that Ordinance No. 198-1944 is inoperative and invalid, and that the appellant has the right to have that fundamental question determined prior to any hearing upon the justness and reasonableness of the provisions *232
of the ordinance, citing City of Cincinnati v. Public UtilitiesCommission,
Counsel for appellant rely, also, upon Cleveland, Columbus Cincinnati Highway, Inc., v. Public Utilities Commission,supra, which may be easily distinguished since the order in that proceeding affected a substantial right by directing a certificated motor transportation operator to provide specified additional service.
Counsel for the commission cite City of Cleveland v. PublicUtilities Commission,
The appeal is dismissed.
Appeal dismissed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, MATTHIAS and HART, JJ., concur.
TURNER, J., not participating.