
    Bennett Bros., a Partnership, v. Public Utilities Commission of Ohio.
    
      Public Utilities Commission — Motor transportation companies —Certification to transport freight should be granted where necessity proven — Existing carriers’ business in territory not deranged or affected by route.
    
    Where a motor transportation company applies for a certificate of public convenience and necessity to transport freight in a territory where the record shows necessity for such service, and shows that the protesting common carrier is not adequately rendering such freight service, and where, so far as the record shows, the route in question can be granted without in any way deranging the freight business of the common carriers operating within such territory, it is the duty of the Public Utilities Commission to grant such application for the territory in question.
    (No. 19992
    Decided November 23, 1926;
    reheard and decided March 8, 1927.)
    Error to tbe Public Utilities Commission.
    On Rehearing.
    
      This is a proceeding in error to reverse an order of the Public Utilities Commission whereby plaintiff in error was denied a certificate of public convenience and necessity over one of two regular routes described in its application, a certificate being granted and accepted for the other route.
    The route for which a certificate was denied, designated as “route No. 1,” extends between Cincinnati and Miami Port, Ohio, via Addyston, North Bend, and Cleves, over what is known as the Lower River road from Cincinnati to Cleves and as the Brower road from Cleves to Miami Port.
    The route for which a certificate was granted, designated as “route No. 2,” extends between Cincinnati and a point in the Ohio-Indiana state line near Elizabethtown, Ohio, via Cheviot and Cleves, over what is known as the Cincinnati-Louisville road, or state route No. 7, with an extension northward therefrom over Zion road to the Harry Hague farm.
    The application was made by a partnership which had in fact been operating over both routes with a truck and freight business since May, 1922, with daily trips and continuous service, which partnership succeeded to a previous truck operation along the same route since January, 1920. The application was filed upon August 3,1925. No appearance was entered by steam railroads serving the territory in question, but the Cincinnati, Lawrence-burg & Aurora Electric Street Railroad Company appeared by counsel at the hearing to protest the application, and offered in evidence the freight tariffs of the Big Four Railroad Company and the Baltimore & Ohio Railroad Company, and its own freight tariff’s. At the conclusion of the hearing, the commission denied the application of the plaintiff in error as to route No. 1, and took under advisement the application as to route No. 2, and eventually, after a rehearing upon the question, affirmed its denial of route No. 1 and ordered that the certificate of public convenience and necessity to operate upon route No. 2 be granted. In its finding of facts the commission ruled as follows:
    “The commission, being fully advised in the premises, is of the opinion that if it finds that the public convenience and necessity require such a motor truck operation, it would have jurisdiction to grant a certificate for the operation over the whole route. In this case, however, while there has been some showing made that a convenience would be served by granting the certificate for the Cincinnati-Miami Fort operation, there has been no disclosure of any substantial difference in the transportation facilities which are now serving this territory than existed at the time of the decision by the Supreme Court of Ohio in Cincinnati Traction Company v. Public Utilities Commission, No. 19023, 112 Ohio St., 699, 148 N. E., 921, and, in the absence of a showing of a substantial decrease in or curtailment of the transportation facilities serving this territory from that which existed at the time of said decision, this commission feels that it is bound by such decision of the Supreme Court and that the applications for such route should be and hereby they are denied.
    “As to the second route applied for by Bennett Bros., we find that there are now no efficient property carrying facilities along this route; that a public necessity exists therefor and a public convenience to be served thereby, and a certificate will be granted therefor.”
    
      Mr. E. J. Shover, for plaintiffs in error.
    
      Mr. C. G. Crabbe, attorney general, and Mr. John W. Bricker, for defendant in error.
    
      Mr. S. I. Lipp, for protestant.
   Allen, J.

The Public Utilities Commission denied the application for a certificate of public convenience and necessity as to route No. 1 upon the ground that the record disclosed no substantial difference in the transportation facilities serving the territory in question than existed at the time of the decision of the Supreme Court in Cincinnati Traction Company v. Public Utilities Commission, 112 Ohio St., 699, 148 N. E., 924. In the case of Cincinnati Traction Company v. Public Utilities Commission, which was an application for a certificate to operate a passenger bus service, the record showed that the route in question was already given passenger service by two other motor-bus lines, with through service by an interurban railroad, and by two steam railroads, furnishing numerous trains and commuting service. It was held in that case that in order to justify the issuance of the certificate it must appear as a reasonable conclusion from the evidence that such transportation companies were not rendering adequate and convenient service for the territory involved, and the order granting a certificate to a motorbus company authorizing it to do local passenger service was therefore reversed.

The instant case differs from the Cincinnati Traction Company case, however, in certain marked particulars. While it is true that the greater part of the freight route No. 1 applied for, from Cincinnati to Miami Fort, follows the line of the passenger route for which the application was granted, and, after reversal, denied in the Cincinnati Traction case, it is also true that that portion of the route at the western end between Cleves and Miami Fort, aggregating some 4.8 miles in length, does not parallel, nor coincide with, the route covered in the Cincinnati Traction case. At Cleves, the Big Four Railroad and the Cincinnati, Lawrenceburg & Aurora Traction Company diverge to the north, passing through Elizabethtown; the Baltimore & Ohio Railroad alone turns south, passing through Miami Fort. The record contains certain freight schedules of the railroads in question, but the railroads do not appear to protest the granting of the certificate upon route No. 1 — that is, upon the route denied the applicant. The traction company is the only protestant, but since the traction company diverges to the north at Cleves, there is no traction service whatever between Cleves and Miami Fort, and as its eastern terminus is at Anderson’s ferry, the traction does not proceed into the heart of Cincinnati.

Another marked distinction between the Cincinnati Traction case and the instant case lies in the fact that in the Cincinnati Traction case there was no testimony whatever in the record tending to establish the necessity for the service in question. In this record, on the contrary, there is the testimony of numerous business men from Cleves, Addyston, and North Bend, and there are petitions signed by numerous citizens asking for the continuance of the freight service. It is the testimony of these business men that the traction company could not give the freight service offered by the truck owner even if its line continued to Miami Fort, for the traction company only runs to Anderson’s ferry, which is some six miles from the heart of Cincinnati. Hence, for carrying freight upon the interurban from Cleves into Cincinnati, or from Cincinnati to Cleves, a separate delivery from or into Cincinnati by truck to or from Anderson’s ferry would be necessary. For delivery at Miami Fort from the traction there would have to be additional unloading from the traction at Cleves, and trucking from Cleves to Miami Fort. It is the uncontradicted testimony of the business men at Cleves, Addyston, and North Bend that if this certificate upon route No. 1 is not granted they will have to maintain trucking service of their own; that they cannot use the traction line which runs from Anderson’s ferry to Cleves in their freight business. Moreover, there is no testimony to the effect that the freight service of either railroad or of the traction will be deranged if the applicant is permitted to continue its operation. This is particularly significant in view of the fact that this freight truck operation has been in existence, although part of the time under a different ownership, since January, 1920. At the hearing before the commission, the traction company put on no witnesses whatever as to freight service. It offered its schedules and the schedules of the railroad lines, but otherwise it only participated in the hearing by cross-examining the witnesses of the applicant. The record shows that no loading platform exists for freight service by the traction company except that at North Bend and at Anderson’s ferry, and does not disclose that any substantial freight service is done by the traction company between Cincinnati, North Bend, Addyston, Cleves, and Miami Fort. In other words, in the Cincinnati Traction case, sn,pra, the proposed passenger route involved an additional passenger service in active competition with existing bus, railroad, and electric lines, while this proposed route No. 1 involves no additional substantial freight competition with the existing steam and electric lines, partly because they do not serve the same territory, and partly because no competition in service is shown.

The commission granted route No. 2, part of which was served by the Cincinnati, Lawrenceburg & Aurora Traction Company and by the Big Foiir Bailroad. It denied route No. 1, in which the railroads did not protest the application. Obviously the existence of passenger service upon this particular route, which in the Cincinnati Traction Company case, supra, was the ground for the denial of additional passenger service, while it is a circumstance to be considered in connection with the use of the highway, is not a completely determining factor for the purpose of deciding whether a freight service shall be allowed upon a route where the steam railroads apparently are unconcerned as to the competition, and the only protesting applicant, as shown by the record, does not render the service desired.

Where a motor transportation company applies for a certificate of public convenience and necessity to transport freight in a territory where the record shows necessity for such service, and shows that the protesting common carrier is not adequately rendering such freight service, and where, so far as the record shows, the route in question can be granted without in any way deranging the freight business of the common carriers operating wdthin such territory, it is the duty of the Public Utilities •Commission to grant such application for the territory in question. That part of the order denying route No. 1 will therefore be reversed.

Order reversed m part.

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