165 N.E. 355 | Ohio | 1929
The issues involved in this error proceeding raise mixed questions of law and fact and require this court to judicially review the evidence to determine whether the findings of fact of the commission are reasonable and lawful, and also whether legal principles governing the same have been properly applied.
In the last analysis the question for determination is whether Motor Freight, Inc., so conducts its business as to constitute it a common carrier, and whether it is a motor transportation company, as defined by Section 614-84, General Code of Ohio. That section provides, in part, as follows:
"The term 'motor transportation company,' when used in this chapter, means every corporation, company, association, joint stock association, person, firm or copartnership, their lessees, trustees, receivers or trustees appointed by any court whatsoever, *7 owning, controlling, operating or managing any motor propelled vehicle not usually operated on or over rails, used in the business of transportation of persons or property, or both, as a common carrier, for hire, under private contract or for the public in general, over any public highway in this state; provided, however, that the term 'motor transportation company' as used in this chapter shall not include any private contract carrier, as defined in Section 614-2 * * *."
This statute and Section 614-2, General Code, were under interpretation, and were discussed at length in Hissem v.Guran,
The volume of business transacted by Motor Freight, Inc., and the facts that it comes in direct competition with those who are rendering transportation service as common carriers, and that it is free from the duties, obligations, taxes, insurance, and other charges imposed upon common carriers, and that the freight, transportation of which is provided by it, is in fact transported over the highways of the state, all militate strongly in favor of subjecting the company to public regulation as a common carrier. If, on the other hand, its business is so conducted as to create only private contract relations between it and its patrons, in which no detriment accrues to the general public, or, in other words, if its business is conducted in such manner as not to bring it within the purview of the common-law definition of a common carrier, it is beyond the reach of governmental agencies seeking to regulate it. Public regulation exercised over a common carrier of freight and passengers affords a measure of protection to those who deal with such carriers, but if those who have freight to be transported prefer to patronize those who are not regulated, and if they are willing to assume the risks which might be avoided by patronizing common carriers, it is no concern of the state. One of the arguments employed in this case is that the highways of the state should not be utilized for the transportation of a *9 large volume of freight without the charges which would help to build and maintain the highways. We have not considered and do not decide whether the individual truck owners are subject to regulation, leaving that subject for consideration and decision when such truck owners shall be proper parties before the court and where the issues will be properly made.
While counsel for the commission do not criticise the principle declared in the Hissem case, it is argued that Breuer
v. Pub. Util. Comm.,
One of the most potent reasons for the conclusions we have reached in this case is found in the fact that Motor Freight, Inc., does not own any of the motor vehicles employed in the transportation. There is therefore no property which is dedicated to public use. It is difficult to see how the commission would proceed to enforce its order. *10
Ordinarily the commission prescribes the equipment to be used, and exercises a measure of supervision over rates and service. Taxes, charges, and insurance have definite relations to the equipment employed. It is difficult to see how these regulations could be applied or made effective. One of the first orders the commission would have to make would be to require the respondent to acquire title to the equipment, and we know of no principle of common law, or provision of statute law, which would authorize such an order. In the findings of the commission under review in this proceeding, it is stated that the truck owners are agents of respondent and under its management and control. We find no evidence in this record to justify such a finding. It is further stated that the question whether or not a given operator is a motor transportation company does not hinge solely upon ownership or lack of ownership of the vehicles in which the freight is carried, and the case of Northern Ohio Traction Light Co. v. Pub. Util.Comm.,
We are not unmindful of the fact that this is an interstate operation, and, while this fact does not militate against subjecting it to public regulation, if it is in fact a common carrier and a motor transportation company, it has called for the exercise of unusual care and diligence in inquiring into the facts and law of this controversy.
If the individual truck owners who are using the highways of this state solely in the transportation of freight for hire are subject to regulation, and can be subjected to proper charges to compensate for such use, the public will have suffered nothing by the method which respondent has adopted in conducting its business, and, if the individual truck owners cannot be so regulated and subjected to charges, that fact is to be deplored. It is not, however, cause for alarm or even regret that some contracts between citizens affecting transportation of freight still remain beyond the reach of governmental regulation.
Order reversed.
KINKADE, MATTHIAS, DAY and ALLEN, JJ., concur.
*12ROBINSON and JONES, JJ., dissent.