Summary
concluding that even though one attorney examiner presided over a hearing before the public utilities commission and another issued the report and recommendation, the procedure did not deprive the appellant of due process rights as "[i]t [was] not essential that a person who prepares findings and recommendations in an administrative proceeding hears the evidence, if he reviews and examines the record of the proceeding"
Summary of this case from CALO v. REAL ESTATE COMMISSIONOpinion
Nos. 39668, 39669 and 39670
Decided April 20, 1966.
Public utilities — Gas company — Discontinuance of line operated at loss — Application for abandonment granted, when — Utility operated at overall profit — Jurisdiction of Public Utilities Commission.
APPEALS from the Public Utilities Commission.
The Federal Power Commission issued an order authorizing the Ohio Fuel Gas Company to remove its interstate gas transmission lines Nos. 6130 and 6133, but, noting that several rural customers were presently receiving gas from those lines, conditioned the authorization on the gas company's receiving any necessary authority from the Public Utilities Commission of Ohio.
The appellants herein, rural consumers of gas, upon receiving information that the gas company intended to abandon such transmission lines, filed complaints with the Public Utilities Commission requesting it to restrain the gas company from removing such lines. The gas company thereafter filed with the commission a formal application to abandon such lines, pursuant to Sections 4905.20 and 4905.21, Revised Code. The two complaints and the application for abandonment were consolidated for hearing.
The attorney examiner before whom the hearing was commenced resigned and another attorney examiner completed the hearing but made no findings or recommendations. The files, transcript and exhibits were referred to a third examiner who made the report and recommendation.
The subject lines were originally, and still are, transmission lines designed to transport gas from sources of supply to a market, not to distribute gas to individual customers. The appellants, owners of land traversed by the transmission lines, received gas from these transmission lines under a company policy whereby landowners who executed right-of-way easements were permitted to receive gas service from these lines for only so long as the gas company needed to keep such lines across their lands as transmission lines. This agreement gave the gas company the right to remove the lines when no longer needed.
The gas company has so improved its transmission system that it no longer needs these subject lines which have become obsolete and in need of substantial repair or replacement which is not justified by the cost thereof. Severe leakage causes loss of gas in substantial quantities. The lines are being operated at a loss.
The commission authorized the gas company to discontinue all service being rendered by the two subject lines and to remove such lines, and dismissed the complaints of the appellants.
Appeals from the order of the commission bring the causes to this court for review.
Mr. Neil M. Laughlin, Messrs. Witherspoon Briggs and Mr. Lewis S. Witherspoon, for appellants.
Mr. William B. Saxbe, attorney general, Mr. Theodore K. High and Mr. Clark G. Redick, for appellee Public Utilities Commission of Ohio.
Mr. R.N. Mahaffey, for appellee The Ohio Fuel Gas Company.
The jurisdiction of the Public Utilities Commission has been questioned. The commission has authority under Sections 4905.20 and 4905.21, Revised Code, to hear and determine the issue presented by the gas company's application for authority to abandon the lines. New York Central Rd. Co. v. Pub. Util. Comm., 171 Ohio St. 365.
Appellants contend they were denied a fair hearing and deprived of due process of law by the commission's assignment of an attorney examiner to prepare findings and recommendations, who had not presided at the hearings. This contention is without merit. It is not essential that a person who prepares findings and recommendations in an administrative proceeding hears the evidence, if he reviews and examines the record of the proceeding.
Appellants question whether a utility may lawfully discontinue a branch of its service although being operated at a loss when the utility operates at an overall profit. This question has been answered in the affirmative in Detroit, Toledo Ironton Rd. Co. v. Pub. Util. Comm., 161 Ohio St. 317.
An examination of the record leads to the conclusion that the order of the commission is neither unreasonable nor unlawful, and it is, therefore, affirmed.
Order affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.