Summary
In Besl Corp., supra, the certificate language was slightly different, but in that case the court expressly found an original contemplation of a specified list of items to be hauled.
Summary of this case from Edwards Transfer Storage Co. v. Pub. Util. CommOpinion
No. 75-669
Decided February 18, 1976.
Public Utilities Commission — Certificate of public convenience and necessity — Interpretation — History of certificate may be considered, when — Language ambiguous.
Where the language of a certificate of public convenience and necessity is ambiguous, the Public Utilities Commission, when interpreting such certificate, may properly consider its history. ( Stony's Trucking Co. v. Pub. Util. Comm., 32 Ohio St.2d 139, approved and followed.)
APPEAL from the Public Utilities Commission.
Appellant, Besl Corporation, is the holder of a certificate of public convenience and necessity, No. 6672-I, which authorizes the transportation of property:
"* * * from and to any point within the state of Ohio, RESTRICTED to the transportation of those articles which by reason of their size or weight require the use of specialized equipment to load, unload, and/or transport."
Certificate No. 6672-I was originally issued in 1940 to W.P. Townsend and authorized the transportation of property from and to any point within Ohio, restricted to:
"* * * the transportation of extra heavy or special property not transportable in regular equipment but requiring special loading or unloading or hauling equipment."
In 1955, the certificate was transferred to Specialized Transport, Inc., which, thereafter, began transporting liquid commodities and cement in tank vehicles. In 1957, a complaint was filed by E. Brooke Matlack, Inc., alleging that Specialized Transport was exceeding the scope of its operating authority under the certificate. In its opinion and order of December 31, 1959, the commission found that certificate No. 6672-I was originally issued in 1940 to allow the transportation of such commodities as heavy equipment, shovels, draglines, boilers and other items carried in "low boy" or "carry-all" equipment. It concluded that the transportation of liquids and cement in tank trucks was not authorized, and that the certificate should be reissued. On June 3, 1960, the certificate was reissued to Specialized Transport containing the language now found in appellant's certificate.
In December 1961, appellant acquired the certificate in its present form and, at various times during the next ten years, transported iron and steel articles, auto gear frames, and aluminum ingots. On September 15, 1972, the commission issued a citation entry finding Besl in violation of R.C. 4921.07 in that its certificate did not authorize transportation of the above items and, further, that Besl violated Section 7.07 of the commission's rules and regulations by leasing equipment for which the owners thereof had no certificate of liability insurance on file with the commission.
On April 14, 1975, the commission issued its opinion and order which found that the history and circumstances surrounding the issuance of certificate No. 6672-I indicated that the transportation of the articles in question was not authorized under the certificate and that Section 7.07 had been violated. The commission ordered appellant to cease and desist from the transportation of iron and steel articles, auto gear frames, and aluminum ingots and to suspend its operations under the certificate for five days.
The cause is now before this court upon an appeal as a matter of right.
Messrs. Muldoon, Pemberton Ferris and Mr. James W. Muldoon, for appellant.
Mr. William J. Brown, attorney general, Mr. Charles S. Rawlings and Mr. Ronald E. Prater, for appellee.
The central issue presented is whether the commission erred by considering the history of appellant's certificate in determining if the transportation of iron and steel articles, automobile gear frames and aluminum ingots was authorized thereunder.
This court was presented with a similar situation in Stony's Trucking Co. v. Pub. Util. Comm. (1972), 32 Ohio St.2d 139, 290 N.E.2d 565. There, in finding that a certificate did not permit the hauling of certain iron and steel articles, the commission examined the history of the certificate. In responding to appellant's contention that the commission should not have examined that history, but instead must make a determination solely from the language of the certificate, the Stony's court stated, at page 142:
Appellant's certificate in Stony's authorized the transportation of property:
"* * * from and to Springfield, Ohio, and also to transport property limited to extra heavy or special property requiring special loading equipment or special equipment adapted to moving such property, to and from any point within the state of Ohio."
"* * * the failure of appellant's argument lies primarily with the language used in Certificate No. 784-I. Far from being plain and unambiguous, the language in the certificate is so broad and vague as to require reference outside the instrument in order to comprehend its meaning. The phrase `extra-heavy or special property requiring special loading equipment' cannot possibly be defined from examination of the certificate alone. Definition can only be achieved through examination of the factors leading to the granting of the certificate by the Public Utilities Commission.
"In a broad sense, the goal of interpretation of legal documents is to determine the intent of the parties. If this goal can be achieved through examination of the document alone, parol evidence is unnecessary. But where, as here, the language of a document is general, reference to the circumstances surrounding the formation of the document is necessary to a complete understanding of the agreement contained therein."
Thereupon, the court announced in its syllabus that "[w]here the language of a certificate of public convenience and necessity is ambiguous, the Public Utilities Commission when interpreting such certificate may properly consider its history."
In the case at bar, the phrase "articles which by reason of their size and weight require the use of specialized equipment to load, unload, and/or transport," found in appellant's certificate, also cannot be defined from an examination of the certificate alone, but requires reference outside the instrument in order to comprehend its meaning. Because such language is ambiguous, the commission was warranted in examining the history of the certificate to determine if it authorized the transportation of the items in question.
The record herein establishes that when appellant's certificate was originally issued in 1940, it contemplated the transportation of excavating machines, shovels, cranes, draglines, road paving equipment, and caterpillar tractors. Although the certificate's language was modified in 1960 to its present form, the record reflects further that the reformation was not intended to broaden the scope of such certificate, but only to prohibit the transportation of liquid commodities and cement in tank vehicles. Additionally, there was no evidence before the commission that any prior holder of appellant's certificate had, in fact, transported the items which are the subject of this action. Therefore, it is our conclusion that the commission's determination that appellant's certificate did not authorize the hauling of iron and steel articles, automobile gear frames, and aluminum ingots is not unreasonable or unlawful, and is supported by the record.
This is also evidenced from the fact that at a hearing before the commission in October 1961, concerning the transfer of certificate No. 6672-I to appellant, Besl's president stated he understood that the authority contained within the certificate was "restricted to heavy hauling equipment."
Appellant asserts that the part of the commission's order suspending its operating rights under the certificate for five days was unlawful. However, the commission's authority to "revoke, alter, or amend" a certificate pursuant to R.C. 4921.10 includes the authority to suspend operations under a certificate upon violation of a statute or valid rule of the commission. Dworkin, Inc., v. Pub. Util. Comm. (1953), 159 Ohio St. 174, 111 N.E.2d 389.
Appellant submits, however, that it often transported the contested articles between 1962 and 1972, without objection from the commission; in essence, appellant contends that this acquiescence should estop the commission from now prohibiting such shipments.
Generally, the principle of estoppel does not apply against a state or its agencies in the exercise of a governmental function. See State, ex rel. Upper Scioto Drainage Conservancy Dist., v. Tracy (1932), 125 Ohio St. 399, 181 N.E. 811; State, ex rel. Kildow, v. Indus. Comm. (1934), 128 Ohio St. 573, 192 N.E. 873; Interstate Motor Freight System v. Donahue (1966), 8 Ohio St.2d 19, 221 N.E.2d 711; Van Gilder v. Denver (1939), 104 Colo. 76, 89 P.2d 529; Alexander Co. v. Owatonna (1946), 222 Minn. 312, 24 N.W.2d 244; Main v. Dept. of Highways (1965), 206 Va. 143, 142 S.E.2d 524.
In Sims Motor Transport Lines v. United States (N.D. Ill., 1959), 183 F. Supp. 113, the Interstate Commerce Commission found that a carrier's certificate did not authorize the transportation of certain commodities. In appealing that decision, the carrier argued that the I.C.C. should be estopped to deny such authority because it had hauled the commodities for 25 years. The court rejected this argument by stating, at page 119:
"It is well established law that plaintiff may not raise the doctrine of estoppel or laches against the United States. * * * Nor can plaintiff assert that its transportation of the items in question over a period of years render such transportation legal today. * * *"
For the foregoing reasons, the order of the commission is affirmed.
Order affirmed.
O'NEILL, C.J., CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.