
    Lake Motor Freight Line, Inc., v. Public Utilities Commission of Ohio.
    (No. 23770
    Decided April 5, 1933.)
    
      
      Messrs. Tracy, Chapman é Welles, for plaintiff in error.
    
      Mr. John W. Briclcer, attorney general, and Mr. Thomas J. Herbert, for defendant in error.
   Day, J.

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 Utilities Commission, 121 Ohio St., 588, 170 N. E., 574, this court held that a common carrier railroad company which owns, controls and operates or manages 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 over any public highway in this state, made such railroad company a motor transportation company, and denied said railroad company the right to operate upon the highway unless it was duly certificated as a motor transportation company.

Later, in the case of the New York Central Rd. Co. v. Public Utilities Commission, 123 Ohio St., 370, 175 N. E., 596, the record disclosed that the railroad company itself made an application for a certificate of convenience and necessity authorizing the operation of a motor freight route between Cleveland and Toledo, via Danbury. This application was denied by the commission and its order affirmed, for three factual reasons: First, because no proper tariffs had been filed by the applicant, as required by the law and the rules and regulations of the commission; second, that the evidence did not show convenience and necessity existed for service between Cleveland and Toledo on the route sought; and, third, that the evidence did not show the existing motor transportation companies were not rendering adequate and convenient service.

In the present case, a certificated motor transportation company seeks to extend its certificate, paralleling the railroad company’s lines between Toledo and Dan-bury, asking for a certificate to pick up and receive freight at the freight stations 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. In the case of Railway Express Agency, Inc., v. Public Utilities Commission, 123 Ohio St., 159, at page 162, 174 N. E., 356, in the per curiam opinion unanimously concurred in, it is said: “Under the peculiar circumstances developed in this record, we think that the plaintiff in error’s application for a certificate should have been granted. Its operation after July 1, 1929, was carried on in good faith and only for the purpose of continuing the same service it had theretofore given the public. The express agency disclaimed any intention of carrying any other goods than such as would be consigned to it for express delivery. However, under the Motor Act, upon grant of a certificate, it would become a common carrier subject to the same liabilities incurred by other motor transportation companies. While it might not be incumbent upon it to seek or advertise for business, still it would be required to accept such as might be offered to it by the general public. Here it desired the operation of a single truck with one round trip each day; this restriction could lawfully be placed upon the operation by the commission, especially as the express agency disclaimed any other purpose than that of carrying on its express service.”

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 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 Utilities Commission, 121 Ohio St., 588, 170 N. E., 574, wherein it was denied the right to transport property entrusted to it over any public highway in this state unless it was duly certificated as a motor transportation company.

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, 123 Ohio St., 370, where at page 378 it is said: “The rights and interests of the public are paramount. 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, and purpose have been followed in the protection and preservation of railroad transportation.” (Italics ours.)

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 Utilities Commission, 121 Ohio St., 588, 170 N. E., 574, or New York Central Rd. Co. v. Public Utilities Commission, 123 Ohio St., 370, 175 N. E., 596.

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.

-At/tbn and Jones, JJ., concur.

Kinkade, J., not participating.

Matthias, J.,

dissenting. 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 Bailroad 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 York Central Rd. Co. v. Public Utilities Commission, 121 Ohio St., 588, 170 N. E., 574, that that company could not transport its freight from station to station along this same route by motor-propelled vehicles without a certificate of convenience and necessity. The company was undertaking, through a contract with A. B. Peek, to haul freight between its stations on said route which had been originally delivered by shippers to the railroad company. Thereafter an application by the railroad company for such certificate was denied, and its action was affirmed by this court in an error proceeding brought by the railroad. New York Central Rd. Co. v. Public Utilities Commission, 123 Ohio St., 370, 175 N. E., 596. Peek is now president of the Jackson Motor Freight Transportation, Inc., and seeks to extend the certificate now held so that he may carry out such contract with the New York Central Railroad and transport freight between the freight stations of the railroad company on said route. The certificate granted by the Public Utilities Commission restricts the operation authorized as follows: Conditioned, that the applicant “transport property only originating at the freight depot of the New York Central Railroad Company at Toledo, to stations along the line of the New York Central Railroad Company between Toledo and Danbury, and reverse, and between points intermediate thereto.”

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.

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 Central Rd. Co. v. Public Utilities Commission, 123 Ohio St., 370, 175 N. E., 596. As heretofore stated the railroad company in that proceeding sought a certificate of public convenience and necessity to conduct the same operation that is involved in this proceeding. In the opinion disposing of that case it was said, at page 377:

“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, 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 opinion.  