23770 | Ohio | Apr 5, 1933
Lead Opinion
This court has heretofore had under consideration certain phases of the transportation problems presented by the railroad and motor transportation companies serving this territory. In the case of New York Central Rd. Co. v. Public UtilitiesCommission,
Later, in the case of the New York Central Rd. Co. v. PublicUtilities Commission,
In the present case, a certificated motor transportation company seeks to extend its certificate, paralleling the railroad company's lines between Toledo and Danbury, asking for a certificate to pick up and receive freight at the freightstations of the railroad company between its stations, and the certificate as granted was conditioned that the applicant transport property only originating at the freight stations of the New York Central Railroad Company, to stations on the line of the New York Central Railroad Company between Toledo and Danbury, and reverse, and between intermediate points thereto. This service contemplates less than carload lots where a freight haul service would be too expensive.
Is such service of value to the public, and does it serve a convenience and necessity?
Was the commission's order unreasonable or unlawful in not allowing the sixty-day provision of Section 614-87, General Code, to operate and give time to the Lake Motor Freight Line, or opportunity to any other motor transportation company, to furnish adequate service?
This record discloses that a different service is rendered by the applicant than by the other transportation companies and that its service is not to be really competitive with them; furthermore, that the complete route was not covered by other transportation companies.
This question of transportation from station to station of a common carrier in connection with an application for a certificate of convenience and necessity has heretofore been under consideration by this court. *423
In the case of Railway Express Agency, Inc., v. PublicUtilities Commission,
In the instant case the commission obviously endeavored to protect the existing motor transportation companies by restricting the applicant's haul to transportation solely between freight stations of the railroad, and not allowing the applicant to do any pickup business at the intermediate points or do any door to door transportation; and it is difficult to see how any protestant would lose any existing business or be in any worse competitive position with the railroad company for freight shipping than it was before in that territory, because freight delivered to the railroad company for transportation at its stations must be transported by it; and by the denial of this extension the railroad company will simply transport its freight *424 over its own lines as a railroad common carrier, although the loads are less than carload lots, the expense to the carrier greater, and the public thus affected. It is in no wise obliged to employ either protestant to transport its freight over the highway from one station to another. Nor is a shipper who has placed his goods in one of the stations of the railroad company for transportation to another station required to have his goods entrusted to any other transportation company than the railroad company, or its exclusive transportation agency, for transportation to another station of the railroad company.
The railroad company, in seeking to render this service, for which there is a demand as evidenced by the public placing in the railroad stations of the company goods to be transported, has endeavored to comply with the decision of this court in the case of New York Central Rd. Co. v. Public UtilitiesCommission,
Again, in recognizing the right of the public, which has placed its goods in a station of the railroad company for transportation to another station of the railroad company, thus employing a long-established means of transportation, the commission endeavored to follow the thought expressed in the language of the opinion in the case of New York Central Rd. Co.
v. Public Utilities Commission,
Could not the commission well have believed that that portion of the public which desired to place its goods in the station of the railroad company for transportation to another station of the railroad company, and had selected the railroad company as its common carrier, might continue to have the benefit of such long-established service without being required to employ other transportation means?
The allowance by the commission of this application does no violence to either New York Central Rd. Co. v. Public UtilitiesCommission,
The protection of the interests of the public is to be considered as paramount to the private interests of transportation companies, and by the granting of this certificate the commission, in the exercise of its sound discretion, was of opinion that there is a justification, in the interest of the public transportation, to grant the extension; and its order in the premises is therefore neither unreasonable nor unlawful.
Order affirmed.
ALLEN and JONES, JJ., concur.
KINKADE, J., not participating.
Dissenting Opinion
It is quite apparent that the intervention of the A. B. Peek Company could have no effect whatever upon the legal aspect of the case presented. The situation tersely presented is that the New York Central Railroad has entered into a contract with a motor company to transport the freight collected by the New York Central at its various stations, from station to station on the route of this extension. This court held in New YorkCentral Rd. Co. v. Public Utilities Commission,
The view of the commission is that while it is the announced purpose of the applicant to haul exclusively freight which the railroad receives for delivery, the applicant would necessarily be hauling the goods of the public in general, and not the property of the railroad company itself. The commission concluded that the proposed operation as limited by its order would in no way affect the existing motor transportation company serving the same territory, since the railroad company is merely procuring by contract the transportation of goods over the public highway instead of itself transporting the same over its rails. *427
The railroad company is not a party to this proceeding. Our question is whether the motor transportation law warrants the issuance of a certificate of public convenience and necessity to the applicant under the facts disclosed by this record. The facts here disclosed are substantially the same as were before the commission and this court in the case of New York CentralRd. Co. v. Public Utilities Commission,
"The New York Central Railroad Company as an applicant for a certificate of convenience and necessity to operate a line of motortrucks over the highways of the state, and thereby transport freight from place to place within the state, is in no better or different situation under the statute than any other applicant for such right and privilege. Under the statute there can properly be no discrimination in its favor, just as there can be no discrimination against it. It is the duty of the commission under the statute in every case to take into consideration other existing transportation facilities in the territory for which a certificate is sought, and where it appears from the evidence that the service furnished by existing transportation facilities is reasonably adequate the commission should refuse the application.
"This case as presented is exactly the same as it would be if the application were filed by any motor-truck transportation company for a certificate covering territory fully and adequately served by duly certified operators. * * * The policy announced by the existing statutes, and frequently applied in these cases, is to preserve and protect previously certified transportation routes, not primarily for their benefit, but for the benefit of the public. The same plan, policy, *428 and purpose have been followed in the protection and preservation of railroad transportation."
The present applicant for this certificate is in precisely the same situation as was the New York Central Railroad Company in the case just cited, and has shown no greater or different right to a certificate than did the railroad company in that case. The plaintiff in error has been certificated to haul freight by truck over the route in question. If the applicant were to serve the public generally in the matter of freight transportation it would then be rendering the very identical service for which the plaintiff in error has been granted a certificate. If the applicant is to serve the public in general then public convenience and necessity must be shown before it is entitled to a certificate. If it is not to serve the public generally, but, on the contrary, is only to operate a truck in the performance of a single contract of carriage, it is not in the service of the public generally and is not a motor transportation company under the terms of the statute. The applicant should therefore be denied a certificate of convenience and necessity upon the same ground that it was denied the New York Central Railroad Company in the case above cited.
The order of the commission should therefore be reversed.
WEYGANDT, C.J., and STEPHENSON, J., concur in the dissenting oninion. *429