
    The City of Cincinnati v. The Public Utilities Commission.
    
      Public utilities commission — Powers and duties — Municipal ordinance directing extension of street railway lines — Section 614-51, General Code — Commission may relieve company of ordinance obligations, when — Order of commission will not be reversed by supreme court, when. .
    
    1. The requirements of a city ordinance, directing a street railway company to construct extensions of its lines, are subject to review by the public utilities commission, which is authorized, upon hearing, to determine whether the requirements of such ordinance are just and reasonable.
    2. Under the provisions of Section 614-51, General Code, the public utilities commission may determine the practicability of additions and extensions of street railway lines required by a city ordinance. In reaching such determination the commission may consider the physical conditions of the proposed route as well as the necessary plan of operation of cars thereover. If upon such hearing the commission finds that operation of cars over the proposed route would entail unusual and unwarranted dangers and jeopardize the lives of passengers, it is authorized to relieve the street railway company from the obligations • sought to be imposed by the ordinance complained of. Such order of the commission will not be reversed upon review by this court when it does not appear from a consideration of the record that it is unlawful or unreasonable.
    (No. 14691 —
    Decided March 9, 1915.)
    Error to the Public Utilities Commission of Ohio.
    On December 16, 1913, the council of the city of Cincinnati passed an ordinance, No. 701, 1913, which, in substance, directed The Cincinnati Street Railway Company and The Cincinnati Traction Company within seventy days after the passage of the ordinance to construct a double-track extension over the so-called Warsaw avenue route from the intersection of Glenway avenue and Wilder avenue northwestwardly and westwardly over Glenway avenue to the intersection of Glenway and Seton avenues.
    The companies named filed their complaint with the public utilities commission under Sections 614-44 and 614-46 of the General Code. They contend that such ordinance should not be enforced against them for the reason that the requirements of the ordinance are unjust and unreasonable; that thereby said companies are required to construct and maintain a street railway line over Glenway avenue, which is unstable and unsafe, due to the sliding character of the ground and extreme grade; that the construction of the Glenway avenue route as proposed involves unusual operating difficulties with.respect to grades, curves and otherwise, and that operation thereon would jeopardize the lives of passengers.
    To the complaint of said companies the city of Cincinnati filed its answer before the commission in which it insists that the ordinance in question is just and reasonable in its requirements, and denies that the portion of Glenway avenue over which the ordinance directs the construction and operation of said street railway line is unstable or is of extreme grade, or that its operation would jeopardize the lives and limbs of passengers.
    Upon the issues thus made the case was heard by the public utilities commission, at the conclusion of which hearing the commission found that the additions and extensions required by said ordinance were not practicable and ordered that said The Cincinnati Street Railway Company and The Cincinnati Traction Company be relieved from any and all obligations imposed by said ordinance and that said ordinance be held for naught.
    Thereupon the city of Cincinnati filed in this court its petition in error, seeking to have this court set aside and reverse the order made by the public utilities commission and order a dismissal of the appeal of The Cincinnati Street Railway Company and The Cincinnati Traction Company.
    • Mr. Walter M. Schoenle, city solicitor, for plaintiff in error.
    
      Mr. Timothy S. Hogan, attorney general, and Mr. Joseph McGhee, for public utilities commission ; Mr. Joseph Wilby and Mr. Ellis G. Kinkead, for defendant in error.
   Matthias, J.

The ordinance in question was passed under authority of Section 614-51, General Code. That section also provides that the requirements and orders of the city council, respecting additions and extensions by public utilities, shall be subject to review by the public utilities commission.

Upon the hearing of this matter considerable evidence was adduced before the commission, and it viewed the territory and inspected the proposed route and also observed the operation of cars over the Warsaw avenue route.

This proceeding comes into this court by virtue of Section 544, General Code, which provides that “A final order made by the commission shall be reversed, vacated or modified by the supreme court, on a petition in error, if upon consideration of the record such court is of the opinion that such order was unlawful and unreasonable.”

Under Section 542 of the General Code such order of the commission must be regarded as prima facie reasonable. It is to be borne in mind then, at the threshold of our consideration of this case, that the presumption obtains of regularity of the proceedings of the public utilities commission, and that its conclusions were fully justified by the evidence before it. If, therefore, it does not appear from the record that the order made herein by the public utilities commission was an unlawful and an unreasonable one it is the duty of this court to affirm its action.

Apparently there is no contention before the commission as to the real necessity for the provision of additional service to meet the demands of passenger traffic to and from Price Hill, a residence section of the city of Cincinnati. Efforts had been made, both by the city authorities and these companies, to provide some additional service over what is known as the Warsaw-Elberon avenue route, which would require an extension of the Elberon avenue line, now in operation, from Eighth street to Warsaw avenue; but it was impossible to procure the necessary consent of property owners along that section of Elberon avenue. Hence the relief sought could not be obtained over that route.

In the hearing before the commission apparently all questions were eliminated save that of danger growing out of the operation of the proposed line from Wilder avenue to Seton avenue. Two elements of danger of operation were presented to •and considered by the commission. The evidence shows that Glenway avenue for a distance of fifteen hundred feet above its intersection with Wilder avenue has a nine per cent, grade, and that portions thereof have been built upon filled ground, by reason of which condition slides have become apparent. Skilled experts, who had examined and investigated the conditions with care, testified that if the proposed double-track line be constructed the added weight would inevitably make such sliding of the street more frequent and more pronounced, and would render the operation of cars thereon dangerous.

The other element of difficulty and danger arises from the necessary operation of the proposed line over the “balloon loop,” an ingenious combination of tracks of balloon shape at the intersection of Glenway avenue and Wilder avenue where the Warsaw avenue line makes such a sharp turn that this arrangement of tracks is required.

The operation of the proposed Glenway avenue line would require that the outgoing cars cross the “balloon loop” at two intersections and, under the proposed method of operation, the inbound cars would take their course over what is now a part of this “balloon loop” track. Then all cars over the proposed line, as well as those over the Warsaw avenue line, would pass either over or through the “balloon loop.”

Under the present operation, during the best weather conditions, the number of cars passing through the “balloon loop” and which must use the same piece of track, is from sixty to seventy per hour, which the evidence shows is as many as may safely be operated under present conditions.

The proposed line would not afford any relief unless more cars be used than are now employed. If more cars cannot be safely used through the loop it seems clear that the danger would be augmented somewhat by taking cars across the loop, and at the same time continue the required operation of cars over the Warsaw avenue line.

The record shows that the proposed Glenway avenue line would strike the “balloon loop” at a grade of nine per cent, and that such grade extends fifteen hundred feet above the loop. From the evidence before them, and actual inspection of the situation, the members of the commission found the conditions at that point to be such that an order that would cause further congestion would entail a hazard that should not be imposed.

It was contended by the city that the dangers of operation on account of the steep grade could be obviated, or at least minimized, by placing a derailing switch four hundred feet above the “balloon loop.” If that be done there would still be a nine per cent, grade extending to the “balloon loop.” It was found by the commission that in most of this distance of four hundred feet it would not be possible for the motorman to see far across the “balloon loop” and up the other side and observe Warsaw avenue cars coming down.

There was evidence that the sliding of Glenway avenue could be prevented by the erection of retaining walls, and it is contended that the commission should have entered a decree approving the ordinance upon the condition that the city construct the necessary retaining walls. The record does not disclose evidence from which the commission could have determined the character, size or location of retaining walls necessary to prevent sliding of the street. It was suggested during the hearing that such requirement be made of the city, but the statute authorizing a review of such ordinance by the public utilities commission does not confer upon the commission any power to legislate for the city or to require the municipal authorities to construct any improvement or exact the performance of any duty by them. Jurisdiction is conferred upon the commission to hear and determine whether the requirements and orders of the council, as to additions and extensions by public utilities, are unjust and unreasonable. These requirements were embraced in the ordinance and were brought into question by the complaint of the street railway companies. Under its terms, plans of construction of these extensions are required to be submitted by the companies within seventy days and the work of construction to begin within forty days after the approval of such plans. When the issue was made before the commission it was authorized to inquire into conditions affecting* the matter of the proposed extension and pass upon the justness and reasonableness of the requirements of the ordinance. It had no other duty and can exercise no further power in relation to such matter. It is authorized only to pass upon conditions presented by the evidence and to determine whether or not such ordinance is, in its requirements, just and reasonable, and whether it should be enforced against such public service companies.

It is urged too that the court may, and should, modify the order of the commission in the regard stated, but there is no evidence in the record upon which, if authorized, the commission or this court could base such conditional decree approving said ordinance. Furthermore, the erection of retaining walls would not meet the second serious element of danger found by the commission rendering the proposed extension impracticable — the increased operation of cars through the “balloon loop.”

From a consideration of the record it cannot be concluded that the order of the commission is unjust or unreasonable. It is, therefore, affirmed.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Jones, JJ., concur.  