
    The East End Traction Co. v. Public Utilities Commission of Ohio. The Youngstown Municipal Ry. Co. v. Public Utilities Commission of Ohio.
    
      Public Utilities Commission — Motor transportation companies —Certificating operation practically paralleling existing traction line — Commission to consider fact that net revenue not earned — Depletion of revenues might necessitate abandonment of traction line — Additional operation between municipalities not required by public convenience and necessity.
    
    (Nos. 19598 and 19599
    Decided May 25, 1926.)
    Error to the Public Utilities Commission.
    These cases were heard together by the Public Utilities Commission and are presented here by a single record.
    On October 20, 1925, Bazzo and Sutton were granted a certificate of convenience and necessity for motor bus transportation from the city of Struthers, south of the Mahoning river, continuing eastward and south of the river to the city of Lowellville, thence crossing the Mahoning river to the north, and thence westerly through the city of East Youngstown to Youngstown city. This certificate was conditioned that the local subdivisions might make reasonable police regulations within their respective boundaries not inconsistent with the provisions of the General Code.
    On. November 23, 1925, plaintiffs in error filed their respective applications to alter or amend the order of the commission granting said certificates of public convenience and necessity to Razzo and Sutton as of date October 20, 1925, assigning various reasons for their application to amend the order.
    The part of the route desired to be excluded by the traction company from the former order to Razzo and Sutton was that part of the route extending “from Lowellville via Struthers and East Youngstown to South Champion and Boardman streets in the city of Youngstown on the north side of the Mahoning river.” The reason assigned for such exclusion was that such territory was already being adequately served. The portion of the route granted under the certificate to Razzo and Sutton and asked to be excluded by the Youngstown Municipal Railway Company was that part extending “from the east corporation line of East Youngstown to South Champion and Boardman streets in the city of Youngstown on the north side of the Mahoning river.” The same reason was given by the Municipal Railway Company for the exclusion of that part of the route from the certificate theretofore granted, viz., that the district was already being adequately served.
    Briefly stated the facts are as follows: The cities of Youngstown and Struthers and the village .of Lowellville are all so located that a portion of each municipality lies both north and south of the Ma-honing river. On the north of the river, and east of Youngstown, is located the city of East Youngstown. The cities of Youngstown and East Youngstown have contiguous boundaries. South of the river the cities of Youngstown and Struthers are also contiguous. The route traveled between the city of Struthers and the village of Lowellville, to the east, covers territory outside of any municipal limits. On December 23, 1925, the applications of both plaintiffs in error for revocation or amendment of the certificate theretofore granted to Eazzo and Sutton were denied for the reason, as stated in the order of the commission, that “there is an unusual demand for transportation service upon and over the route whereon the defendants Matto W. Eazzo and John Sutton were granted a certificate of public convenience and necessity,” and the present means of transportation, including the motor transportation of the defendants, were necessary to adequately serve the traveling public along said route.
    On December 24, 1925, Eazzo was granted an individual certificate of public convenience and necessity for motor transportation, operating between fixed termini, extending from the city of Struthers to Lowellville, south of the river, and from the village of Lowellville westward, north of the river, to Champion street in the city of Youngstown, subject also to the condition that local subdivisions might make reasonable police regulations within their respective boundaries not inconsistent with the General Code. The equipment permitted under the last order was two 7-passenger cars and two 15-passenger cars.
    Both plaintiffs asked for a rehearing of the proceedings. The applications for rehearing were denied by the commission. Exceptions were taken thereto by the plaintiffs in error, each of which instituted a proceeding in error in this court to reverse the findings and order of the commission.
    
      Messrs. Harrington, Deford, Huxley & Smith, for plaintiffs in error.
    
      Mr. G. G. Grabbe, attorney general, Mr. John W. Bricker, and Mr. J. E. Roberts, for defendant in error.
   By the Court.

These two cases were heard together. Razzo and Sutton were denied a certificate of convenience and necessity over' the portion of the route applied for located between Struthers and Youngstown on the south side of the Mahoning river. The traffic of the Municipal Railway Company, south of the river, was therefore not affected by the order of the commission. Furthermore, the Municipal Railway Company operates entirely within municipal limits which are subject to municipal regulation.

The protest of the East End Traction Company, however, presents another phase. That line runs from the city of Youngstown through the cities of East Youngstown and Struthers to Lowellville, the portion of the route between Lowellville and Struthers being without any municipal limits. The certificate of public convenience and necessity granted to the applicants Razzo and Sutton the right to operate north of the Mahoning river from Youngstown to Lowellville, and the route was substantially parallel to the route of the traction company, except at points west of and near the village of Lowellville where the motor route somewhat deviated from the rail route of the East End Traction Company. The certificate granted to the motor company enabled it to come in direct competition for passenger service over that part of the traction route,north of the river, extending from Lowellville to Struthers and Youngstown. In the territory between the municipal limits of Struthers and Lowellville there was but one small manufacturing plant. As shown in the record the chief cause of complaint against the inadequacy of the traction company’s service arose from the conditions prevailing in the municipalities, and especially in Bast Youngstown. There was insufficient proof of inadequacy of service between Struthers and Lowellville, although there was some inconvenience to the public residing between those points. Any inadequacy of service, if proven, resulted from service within the three cities. It is not contradicted in the record that the East End Traction Company had “made no net revenue over operating expenses and taxes for the last five years.” Necessarily the commission should have given some consideration to that fact, in so far as the depletion of revenues might necessitate a later abandonment of the traction line altogether.

The Municipal Bailway Company is operated under a franchise from the city of Youngstown, known as the “service at cost franchise”; the rate of fare being at the time of hearing 8 cents in cash, with seven tickets for 50 cents. We think that municipal regulations may safely be permitted to take care of the adequacy of service within the limits of these municipalities, and that the record fails to show that at the present time public convenience and necessity require additional operation by motor transportation over that part of the route between Lowellville and Youngstown.

In case No. 19599, the order of the commission will be affirmed. ■ In case No. 19598, the order of the commission will be reversed, and the cause remanded to the commission for further proceedings in accordance with this opinion.

Order reversed in cause No. 19598.

Order affirmed in cause No. 19599.

Marshall, C. J., Jones, Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  