
    City of Nelsonville v. Ramsey et al.
    
      Public Utilities Commission — Certificated motor transportation oompanies — Intercity routes along state roads — Power of municipality to regulate by ordinance — Section 61-4-86, General Code.
    
    Ordinances of a municipality passed under Section 614-86, General Code, must ¡be reasonable police regulations with reference to the use of the streets of such municipality and the control of traffic thereon, and not have for their purpose , the material interference with and practical elimination of the efficiency of the service and accommodation of the public using an interurban bus transportation line, operating within the limits of such municipality over an interurban route along state highways between cities of this state, as sanctioned by the Public Utilities Commission pursuant to a certificate of convenience and necessity issued under authority of Section 614-88, General Code.
    (No. 18620
    Decided June 9, 1925.)
    Error to the Court of appeals of Athens county.
    This matter comes into court on error from tha Court of Appeals of Athens county. The original action was begun in the court of common pleas by ft. ffarold ftamsey, Clarence Allen, Porter Murphy, Sherman Nelson, John Baitich, and Owen Daniels, filing a petition against the city of Nelsonville, wherein they averred in substance that they were engaged in the motor transportation business under the trade-name of the Red Star Transportation Line, conducting a motorbus line between the city of Lancaster, Ohio, and the city of Athens, Ohio; that said transportation line passed through the city of Nelsonville; that to so conduct their business they were duly authorized by the Public Utilities Commission under an order of that body; that they have complied with all the laws of Ohio with reference to motor transportation; that they have enjoyed those rights since the 24th day of November, 1922.
    
      Municipal Corporations, 28 Cyc., p. 763.
    
      They further complain that on the 6th day of March, 1924, the city of Nelsonville, Ohio, passed an ordinance restricting transportation of passengers, freight and express by motor vehicle on certain streets, alleys, and avenues in the city of Nelson-ville, and that said motorbusses by virtue of said ordinance were forbidden to pass through the city of Nelsonville over any improved or paved street or alley or avenue, without violating the provisions of the ordinance; that as a result thereof the object and purpose and efficiency of the service of the motorbus line would be greatly hindered and inconvenienced, and render it impracticable for said motorbus line to exist and carry on said business between the city of Lancaster, Ohio, and Athens, Ohio, over the state road upon which said motor-bus lines were authorized to operate by the Public Utilities Commission; that unless restrained by the court the drivers of said motorbusses would be arrested and the business of the motorbus company practically destroyed, and to prevent which they had no adequate remedy at law, and an injunction restraining the enforcement of said ordinance was asked.
    An answer was filed by the city of Nelsonville, which admits the issuing of the certificate of public convenience and necessity by the Public Utilities Commission to the Eed Star Transportation Company, and admits the passage of the ordinance, but avers that the same was to relieve the congested condition of the streets and to provide adequate transportation facilities, and to protect pedestrians and the public generally, and to preserve the public peace and safety.
    A reply was filed by plaintiffs which averred that the ordinance was passed not to relieve the congested conditions of the streets and to protect the pedestrians and the public generally, or to preserve the public peace and safety of said city; that the ordinance was passed in the interests of a traction company operating cars between the city of Athens, Ohio, and Nelsonville, Ohio. Upon the issues tendered by the pleadings filed by the parties, trial was had in the court of common pleas, which found the issues in favor of the defendant and denied the relief prayed for in the petition. An appeal was prosecuted to the Court of Appeals, in which court the following agreed statement of facts was made between counsel:
    
      “That beginning at a point where the Kemberly road intersects the Athens-Nelsonville road at a place commonly called the ‘ dugout’ and following the main road into Nelsonville to the Dew hotel on the public square is a distance of 1 9/10 miles. From the Dew house to the corner of Madison street a.nd Washington street is three-tenths of a mile, and along Madison street to Fulton street is two-tenths of a mile.
    “That the distance from the Dew house to the intersection of the Kemberly road with the AthensNelsonville road by going west from the Dew hotel to Madison street, thence south across the river at a place commonly known as Robins’ mill, thence east along the Robins’ mill road to the Kemberly road, thence to the intersection of the Kemberly road with the Athens-Nelsonville road at a place commonly known as the ‘dugout’ is a distance of 2 8/10 miles, or an additional nine-tenths of a mile in distance.
    “That a part of this way is over the canal towpath; that telephone poles are set along the north side of the towpath and other posts which indicate that a dyke of some ldnd is being formed there, only leaving a width of 12 feet for travel. That a part of the road on the south side of the river from Robins’ mill to the Kemberly road has had placed in it some cinders and other parts of the road is a dirt road with no hard surface whatever; that a part of the road now is across the Hocking bottom, with no hard surface, and that there is mud there at this time; that an automobile can pass over the road from Robins’ mill to the Kemberly road, but that the road is so narrow in a great many places that automobiles cannot pass and that the same is full of chuck holes and ruts.
    “That there is only one other way in passing through the city of Nelsonville east and west other than road heretofore described, and that way is to go north on Fourth street to the village of Buchtel to Whitmore’s Greenhouse, a distance of about 2 miles, thence east about 1% miles, thence south a distance of one-half mile to the intersection of the Athens-Nelsonville road. That almost the entire distance of this road is a dirt road, wholly unimproved.
    ‘ ‘ That the motorbusses are operated on a 30-min-ute schedule between Athens and Lancaster.”
    In addition to the foregoing agreed statement of facts, testimony was offered tending to show that the ordinance in question was presented to the council through the president of the traction company, and further testimony Avas offered with reference to the fact as to Avhether there is such congestion upon the streets of the city of Nelsonville that the busses could not be operated thereon. There was an objection to this line of testimony and as to the probable motive the city council had in enacting the ordinance. Whereupon the presiding judge of the Court of Appeals said:
    “If this evidence may be considered at all it proves that the council enacted the ordinance for the protection of the street railway company solely, and that the things stated in the ordinance as reasons for its enactment, namely, to relieve congested traffic, etc., are not true. As far as I am personally concerned, I do not care to hear any further evidence on that point.”
    
      The certificate of public convenience and necessity No. 43 issued to the Red Star Transportation Line was offered in evidence, and counsel for the respective parties made certain agreements with reference to widths of streets and distances, among which is:
    “That in passing from the Dew house north to Washington street, thence west on Washington street to Madison street a distance of three-tenths of a mile, thence south on Madison street to the canal towpath, and thence on a part of the canal towpath to Fulton street, the most of it is unimproved, with no hard surface whatever, but is a dirt road and rough.”
    The case was thereupon submitted to the Court of Appeals, which court reached the conclusion that the city ordinance was an unwarranted interference with the right of the commission to fix the route over which the public utility in question might travel, and found that in so far as the ordinance in question was a reasonable local police regulation, it created a condition which was inconsistent with the provisions of Section 614-86, General Code (110 Ohio Laws, page 214), and therefore invalid, and the Court of Appeals found upon the issues joined against-the city of Nelsonville, enjoined the city from in any way interfering with the Red Sitar Line Transportation Company ini the operation of its motorbus line in and through the city of Nelsonville and from molesting, interfering, or arresting any of its drivers or authorized agents by virtue of any of the provisions of Ordinance 635. Error is now prosecuted to this court to reverse this decree.
    
      
      Mr. Emmett Keenan and Messrs. Foster é Wells, for plaintiff in error.
    
      Messrs. Woolley é Rowland, for defendant in error.
   Day, J.

The controversy involved herein relates to bns transportation authorized by the Public Utilities Commission over am intercity route along a state road, and does not involve questions arising on purely intracity transportation.

The certificate of public convenience and necessity issued by the Public Utilities Commission of Ohio to the defendants in error fixed a route from the city of Lancaster, Ohio, through the city of Nelsonville, via “Washington street to Fountain square, thence Columbus street to Jefferson street, thence Watkins street to Chestnut street, thence to corporation line,” thence on a fixed route to the courthouse in the city of Athens, Ohio; the termini of said route being im the city of Lancaster and the city-of Athens respectively.

The council of the city of Nelsonville enacted an ordinance designated as:

“Am ordinance restricting the transportation of passengers, freight and express by motor vehicles on certain streets, alleys and avenues in the city of Nelsonville, Ohio.”

It is recited in the preamble to said ordinance:

“The streets on which are located street car tracks are amply and sufficiently provided with the transportation facilities for the convenience of the citizens of said city and the public generally, and * # * the streets aforesaid are now being used by motorbusses and other vehicles im the carriage of passengers, freight and express for hire, thereby increasing the traffic on such streets and making the same congested and dangerous to pedestrians and the public generally.”

The ordinance then proceeds to prohibit the operation of any motorbusses on any street or avenue “On, or along or over which street car or interurban car lines are now constructed and on, or along or over which street cars or interurban ears are operated.”

The provisions of the ordinance aforesaid exclude defendants in error, from operating their busses over and along the following streets of the city of Nelsonville, which are designated in the route of said defendants aforesaid and described in their certificates of convenience and necessity as provided by the commission, namely, those parts of Columbus, Jefferson, Watkins, and Chestnut streets. The question in this case then becomes, how far may the city authorities of the municipality of Nelsonville interefere with or change this route fixed by the Public Utilities Commission while the same is passing through the city of Nelsonville?

We think that Section 614-86, G-eneral Code, is applicable to the solution of the case at bar, and that the city of Nelsonville had a right to make reasonable police regulations within its boundaries with reference to traffic on its streets and the use thereof by the public. This would mean such regulations with reference to right or left turns, one way streets, stops at certain points where safety and local conditions required it, and such other matters of purely local concern which affect peculiarly the municipality. These regulations should he reasonable in character and not designed to nullify and set aside the orders of the Public Utilities Commission by materially interfering with the efficiency of the utility as authorized by the Public Utilities Commission.

The Public Utilities Commission should at all times give due consideration to local conditions, which are best known to municipal authorities. At the same time it must not be overlooked that the Public Utilities Commission is intrusted with the duty in the interest of the public of securing for the public adequate service from public utilities, and for the convenience, necessity, and safety of the public in matters of travel upon the public highways of the state. To that end by Section 614-86, General Code, the state, through the Legislature, vested with the Public Utilities Commission the power and authority “to supervise and regulate each such motor transportation company * # * to regulate the service and safety of operation * * # to prescribe safety regulations, and designate stops for service and safety on established routes.”

This power, as above indicated, must be exercised consistently with the right of municipalities through which any such route passes to enact reasonable police regulations. What does this record show? Among other things by the agreed statement of facts, it appears that to divert this bus transportation line from the route fixed by the Public Utilities Commission, the busses would have to travel a considerable distance out of the way of the route prescribed by the commission over a dirt road wholly unimproved, in some places narrow and full of ruts. It also appears that these motorbusses are operated on a 30-minute schedule between Athens and Lancaster. This species of detour, especially when the unimproved roads were muddy, rough, and in a condition difficult for motor travel, must materially interfere with the efficiency of the utility and render the service to the public, authorized by the commission, less effective to the public.

The record fails to show that the safety of pedestrians upon the street and the congested condition of travel upon the street require any such detour from the established route in the city of Nelsonville; nor is there any tender of evidence on the part of the city to show such fact, if it could have been shown. We think the record clearly evinces a condition as evidenced by the remark of the presiding judge of the court of appeals that:

“The council enacted the ordinance for the protection of the street railway company solely, and that the things stated in the ordinance as reasons for its enactment, namely to relieve congested traffic, etc., are not true.”

Frankly then the controversy must narrow down to one of power of the municipality to pass such an ordinance. In order to justify the same, it must be a reasonable police regulation and as applied to the situation of a transportation line, which is interurban and not purely intraurban, we are constrained to the conclusion that its enactment was beyond the letter and spirit of Section 614-86, General Code, authorizing municipalities to pass reasonable police regulations and, being inconsistent with the provisions of the act in question, the Court of Appeals was right in reaching the conclusion that it did, to wit, in restraining the city from enforcing the ordinance in question.

We are cited to the case of Village of Perrysburg v. Ridgway, Taxpayer, 108 Ohio St., 245, 140 N. E., 595. We do not regard this case as controlling, for the reason that the same was decided before Section 614-86, General Code, came into effect, and it is further to be noted that on page 259, 140 N. E., 599, in the majority opinion, it is said:

“We are not passing upon the question whether or not the municipality saw fit to interfere with through traffic over its streets by entirely prohibiting the same. That question is not here.”

The majority of the court are of the opinion that the judgment of the Court of Appeals should be affirmed.

Judgment affirmed.

Jones, Matthias and Robinson, JJ., concur.

Marshall, C. J., Allen and Kinkade, JJ., dissent.

Allen, J.,

dissenting. I dissent from the syllabus and judgment in this case for the reason that the control and management by a municipality of the streets, and of the traffic thereon, is an exercise of the power of local self-government, and, as such, need not be exercised in conformity with orders made by an administrative body created by statute. Section 3, Article XVIII, Constitution of Ohio.

Marshall, C. J., and Kinkade, J., concur.  