Opinion
No. 18666
Decided December 9, 1924.
Public Utilities Commission — Motor transportation companies — Certificate of convenience and necessity — Error proceedings to Supreme Court — Order refusing certificate not against weight of evidence.
ERROR to the Public Utilities Commission.
Mr. Randolph Walton; Mr. W.S. Pealer; Mr. J.A. Okey, and Messrs. Scott Scott, for plaintiff in error.
Mr. C.C. Crabbe, attorney general, and Mr. John W. Bricker, for defendant in error.
There is nothing involved in this case except a question of fact. From the findings of the commission we quote:
"Heretofore this party made application to this commission for a certificate to operate a motor transportation company, carrying passengers over this route. That application was denied, for the reason that the commission had already granted to one W.D. Thomas a certificate for the route, and such decision appealed to the Supreme Court of Ohio, where it was affirmed. Thereupon the present affidavit was presented, and at the hearing, which became necessary because of the protest filed, there was offered some testimony that the affiant had made some trips between Caldwell and Marietta prior to April 28, 1923. Such trips, however, at the most were only casual, as the affiant could not have been actually operating over this route in regular service between these points on and prior to April 28, 1923, as state highway No. 8 was not open for travel along this route until long after that date.
"The commission, being fully advised in the premises, therefore finds that the statements contained in said affidavit are untrue."
The evidence outside of the testimony of the plaintiff in error is inconclusive and in sharp conflict. The commission finds the evidence of plaintiff in error in conflict with the physical facts which existed over the route. The character of the evidence is such that to arrive at the actual facts requires a determination of which witnesses were speaking the truth and which were not. The commission, with the witnesses before it, determined the facts against plaintiff in error, and this court from the record is not able to say that the finding is against the weight of the evidence.
The finding of the commission is affirmed.
Order affirmed.
MARSHALL, C.J., ROBINSON, JONES, MATTHIAS, ALLEN, and CONN, JJ., concur.