Opinion
No. 30131
Decided January 17, 1945.
Public Utilities Commission — Motor transportation companies — Joint rates authorized, when — Section 614-84 et seq., General Code — Commission may prescribe rules and regulations governing joint passenger rate schedules — Commission may approve joint rate established by motor carriers, when — Certificated operator restricted as to passengers between certain cities — May transport passengers having origin or destination beyond such cities, when.
1. Under the Motor Transportation Act, Section 614-84 et seq., General Code, motor transportation companies or common carriers by motor vehicle are authorized to establish joint rates subject to the restrictions contained in their respective certificates of public convenience and necessity and subject to the rules and regulations prescribed by the Public Utilities Commission of Ohio.
2. The Public Utilities Commission of Ohio is authorized to prescribe rules and regulations governing the construction, filing and publication of schedules of joint passenger rates by motor transportation companies.
3. It is neither unlawful nor unreasonable for the Public Utilities Commission of Ohio to permit and approve a joint passenger rate adopted, filed and published by motor transportation companies in accordance with the commission's administrative order No. 124.
4. A motor transportation company was granted a certificate of public convenience and necessity which provided that it should not accept for transportation or carry (1) any passenger at or from any point within the corporate limits of the city of Chillicothe, whose destination is within the corporate limits of the city of Circleville or the city of Columbus; (2) any passenger at or from any point within the corporate limits of the city of Columbus whose destination is within the corporate limits of the city of Circleville or the city of Chillicothe; or (3) any passenger from within the corporate limits of the city of Circleville whose destination is within the corporate limits of the city of Columbus or the city of Chillicothe. Such conditions do not prohibit the transportation of passengers by such motor transportation company between Columbus, Circleville and Chillicothe (1) when such passenger's trip begins at either Columbus, Circleville or Chillicothe on a ticket providing for joint through transportation in connection with another motor transportation company and the destination of such passenger is a point beyond either Columbus, or Chillicothe, or (2) when the destination of such passenger is either Columbus, Circleville or Chillicothe when travelling on a joint through ticket from a point beyond either Columbus or Chillicothe upon the route of a connecting motor transportation company.
APPEAL from the Public Utilities Commission.
This is an appeal from an order of the Public Utilities Commission of Ohio.
Appellant and Atlantic Greyhound Corporation are motor transportation companies operating under Section 614-84 et seq., General Code. In this statement and the opinion following, Atlantic Greyhound Corporation will be referred to as "Atlantic," while the Public Utilities Commission of Ohio will be referred to as "commission." Atlantic's predecessor was the Cannon Ball Transportation Company.
In 1929, Atlantic's predecessor was operating under a certificate of public convenience and necessity, with Chillicothe as its northern terminus. At the same time The Scioto Valley Railway Power Company was operating an interurban electric line between Chillicothe, Circleville and Columbus. The Scioto Valley Railway Power Company owned appellant as a subsidiary and in 1929 appellant made application for a certificate of public convenience and necessity between. Chillicothe and Columbus. At the same time, Atlantic's predecessor made application to extend its operation to Columbus. Both applications were granted. See Annual Report Public Utilities Commission of Ohio (1929), 279. However, the certificate of Atlantic's predecessor contained the following conditions:
"Certificate granted, 'conditioned that the applicant [Cannonball] on such extension shall not accept for transportation or carry:
" 'Any passenger at or from any point within the corporate limits of the city of Chillicothe, whose destination is within the corporate limits of the city of Circleville or the city of Columbus;
" 'Any passenger at or from any point within the corporate limits of the city of Columbus whose destination is within the corporate limits of the city of Circleville or the city of Chillicothe;
" 'Any passenger from within the corporate limits of the city of Circleville whose destination is within the corporate limits of the city of Columbus or the city of Chillicothe.' "
In the course of its decision granting Atlantic's predecessor the certificate the commission said (See Annual Report Public Utilities Commission of Ohio [1929], 284, 285):
"We feel that the interurban railway company from Chillicothe to Columbus cannot justly demand that all passengers who seek passage from points south of Chillicothe into Columbus should be hauled to Chillicothe and compelled to change to the equipment, whether it be an interurban car or a subsidiary bus of the lines of The Scioto Valley Railway Power Company or The Valley Public Service Company. * * *
"We come then to consider whether or not The Cannon Ball Transportation Company shall be permitted to haul passengers without restriction from Chillicothe and Circleville to Columbus. On this point the commission is of the opinion it should not allow The Cannon Ball Transportation Company to take passengers, who originate at Chillicothe or Circleville, to Columbus in competition with the established electric railway service or its subsidiary bus service."
Until a comparatively recent date it was the general practice of motor carriers to publish local rates only, that is, between points on their own respective lines, and it was necessary for any person going beyond the terminus of the particular motor carrier to purchase another local ticket for his ride over the connecting carrier.
Since February 1, 1938, the Ohio Motor Bus Association, through C.J. Randall as agent, has been issuing a joint Ohio passenger tariff and the various motor transportation companies have made arrangements whereby through tickets are sold over designated routes. See Sections 614-92 a and 614-93 a, General Code. Section 614-83, General Code, provides for the co-operation by the commission with an organization of motor carriers in the administration of the law, and Section 614-86, General Code, prescribes the commission's jurisdiction, powers and duties.
C.J. Randall as agent of Ohio Motor Bus Association issued passenger tariff No. 1-B, in rule 18 (effective May 1, 1944) of which provision was made for routing from points beyond Columbus ( e. g., north, east or west) to points between Columbus and Chillicothe via Atlantic with the exception noted thereon that such routing did not apply locally between Columbus and Chillicothe. This tariff enabled a passenger to purchase a through ticket from point or origin to destination, and in some cases made it unnecessary to change busses. (See Section 614-92 a, General Code.)
Pursuant to Section 528, General Code, made applicable by Section 614-89, General Code, appellant filed its complaint with the commission in which, inter alia, it was alleged:
"Your complainant states that rule No. 18, which is an amendment of the existing rules applicable to Interdivision and Joint Passenger Tariff, No. 1-A, makes provision for additional routing privileges involving fares authorized in P. U. C. O. No. 14 applicable over routes between the following points, Columbus and Chillicothe via the lines of the Atlantic Greyhound Corporation, the present owner of certificate No. 1750. Said rule contains an exception that fares authorized between Columbus and Chillicothe do not apply locally between said cities.
"Your complainant further represents that rule 18 is an attempt to evade and change the restrictions in certificate No. 1750 and if permitted to remain will result in the establishment of rates unjustly discriminatory to your complainant."
Appellant in such complaint prayed that the commission:
"(3) After a full hearing, whether completed before or after the regulation or practice goes into effect, make such order in reference to such regulation or practice as would be proper;
"(4) Make such other finding and enter such further orders as this complaint and the facts presented at any such hearing may warrant or require."
The commission suspended rule 18 and proceeded with a hearing on the aforesaid complaint, resulting in the following order:
"Ordered, that suspended rule 18, first revised page A-8 to P. U. C. O. No. 14, issued by C.J. Randall, agent, be, and hereby it is, found to be not in accord with the requirements of this commission as to the publication of 'routing' and, therefore, shall be cancelled, without prejudice to the filing of routing instructions, in accordance with the rules and regulations of this commission in connection with joint fares, upon statutory notice, and to provide joint fares and routing, in connection with Atlantic Greyhound Corporation, as set forth in the findings herein."
Appellant's petition for rehearing was denied and appeal to this court was taken pursuant to Section 544, General Code, which provides:
"A final order made by the commission shall be reversed, vacated or modified by the Supreme Court on appeal, if upon consideration of the record such court is of the opinion that such order was unlawful or unreasonable."
Mr. James M. Schooler, for appellant.
Mr. Thomas J. Herbert, attorney general, and Mr. Kenneth L. Sater, for appellee.
First to be disposed of will be two questions raised sua sponte, to wit: (1) Is the commission's order a final order? (2) Is appellant aggrieved by the order appealed from?
As defined in Section 12223-2, General Code, an order affecting a substantial right made in a special proceeding is a final order.
In the case of Ohio Contract Carriers Assn., Inc., v. Public Utilities Commission, 140 Ohio St. 160, 42 N.E.2d 758, it was held:
"Appeal lies only on behalf of a party aggrieved by the final order appealed from. Appeals are not allowed for the purpose of settling abstract questions, but only to correct errors injuriously affecting the appellant."
The majority of the court is of the opinion that the commission's order does affect a substantial right of the appellant and that appellant is aggrieved thereby for the reason that the relief sought by appellant was not granted. The commission's finding in such order was "that the proposed publication of joint rates or routings to the extent as herein set forth are not prejudicial to the rights of the protestant nor a violation of the imposed restrictions * * *."
It is true that rule 18 complained of was ordered cancelled but such order was "without prejudice to the filing of routing instructions, in accordance with the rules and regulations of this commission in connection with joint fares, upon statutory notice, and to provide joint fares in routing, in connection with Atlantic Greyhound Corporation, as set forth in the finding herein."
Besides, the commission in its finding went to the very heart of the controversy raised by appellant's complaint when it found:
"We further find that the restrictions imposed upon certificate No. 1750 do not prohibit the transportation of passengers between Chillicothe and Columbus by Atlantic (1) when originating at either of these points, and travelling upon a joint through ticket providing for a joint through transportation in connection with another carrier when the destination of such passenger is a point beyond either Columbus or Chillicothe, or (2) when destined to either Columbus or Chillicothe and travelling upon a joint through ticket from a point beyond either Columbus or Chillicothe upon the route of a connecting carrier * * *."
It was in view of the foregoing finding that the commission held that its order should be "without prejudice to the filing of routing instructions, in accordance with the rules and regulations of this commission in connection with joint fares, upon statutory notice, and to provide joint fares in routing, in connection with Atlantic Greyhound Corporation, as set forth in the findings herein."
If the appeal herein be dismissed, appellant would doubtless be met, in a proceeding questioning the new schedule, with the claim that the merits of this controversy had been settled.
We proceed then to the merits of the appeal.
Appellant states as its major premise:
"The basis of this action is an attempted regulation of joint routes for intrastate motor carriers operating in Ohio, under separate certificates with fixed termini as required by Motor Transportation Act. No mention of joint routes is found in such Motor Transportation Act."
Appellant's attack is directed particularly to parts of rules 9, 18 and 20 of the commission's administrative order No. 124. These parts are as follows:
In rule 9: "The term 'joint rate' or 'joint fare' shall mean a rate or fare applicable over the lines of two or more carriers. * * *
"The term 'joint tariff' shall mean a tariff containing joint rates or fares.
"Joint tariffs shall contain the names of all participating carriers, together with the numbers of certificates covering their operations and the numbers of concurrence or power of attorney."
In rule 18: "Passenger tariffs will be of four classes.
"(a) Joint tariffs, applying to traffic between points on the lines of two or more carriers."
Rule 20 (e) will be set out later in this opinion.
However, as presented to the commission, appellant relied principally upon the conditions contained in Atlantic's certificate of public convenience and necessity. It is the claim of appellant that, by virtue of the conditions contained in Atlantic's certificate, Atlantic may not haul intrastate passengers originating beyond Columbus to Circleville or Chillicothe; neither may Atlantic haul passengers from Chillicothe or Circleville who are destined to intrastate points beyond Columbus. Appellant's position is stated in the record in the following language of its treasurer and assistant secretary:
"In the past we have rights to haul local passengers and we have always maintained that we have rights to any passengers originating at Chillicothe travelling intrastate to points beyond Columbus, and that in interstate commerce, of course those passengers have the right to ride either line which they prefer, and the same thing applies to passengers originating north of Columbus. We maintain that any passenger originating intrastate going through Columbus to Chillicothe and terminating at Chillicothe is our passenger."
The position of Atlantic is stated by its vice-president in charge of tariffs in a letter to C.J. Randall, secretary Ohio Motor Bus Association (introduced in evidence below as exhibit "A"):
"Our certificate carries a restriction against the handling of passengers whose origin is within the city limits of Columbus, and whose destination is within the city limits of Chillicothe, or whose origin is within the city limits of Chillicothe and whose destination is within the city limits of Columbus.
"The above is the only restriction on our franchise, and I would, therefore, appreciate your putting in section 'A' an optional routing privilege, authorizing Atlantic Greyhound in all routes reading between Columbus and Chillicothe, with the exception of Columbus-Chillicothe itself."
There is no direct evidence in the record to the effect that Atlantic has been selling tickets or transporting passengers from Chillicothe to Columbus whose destinations are points beyond Columbus. However, as we read appellant's exhibit No. 1, which is the tariff in question, rule 18 applies between Columbus and Chillicothe in either direction except that it does not apply locally between Columbus and Chillicothe.
The position of appellant is summarized and commented on in the following language of the commission's order:
"It is claimed by protestant [appellant] that Atlantic is prohibited by the imposed restriction, as an example, from handling a passenger originating at Chillicothe who is traveling on a joint ticket to Akron when transferred to another carrier at Columbus. Such a passenger's destination is not Columbus but Akron. The same holds true of a passenger who travels on a joint ticket from a point north of Columbus over the route of any carrier and transfers to either the protestant's [appellant's] line or the line of the respondent [Atlantic] at Columbus, whose destination is Chillicothe. Such passenger is not 'at or from' Columbus, and his origin is not Columbus."
Appellant has assigned eleven grounds of claimed error all of which may be decided under two heads, to wit: (1) Are the parts of the commission's administrative order No. 124, objected to by appellant, unlawful or unreasonable? (2) Assuming that administrative order No. 124 is lawful and reasonable, will rule 18 of the passenger tariff issued by C.J. Randall as agent of Ohio Motor Bus Association, when reformed in accordance with the order of the commission, conflict with the restrictions contained in the certificate of public convenience and necessity issued to Atlantic's predecessor?
Rule 20 (e) of the commission's administrative order No. 124 provides:
"Routing under the tariff. If the fares apply via more than one route or gateway, the route or gateway shall be shown in connection with the fare, or the different route shall be specified and each route be given a number, in which event the routing to each point of destination named in the tariff will be shown by placing opposite thereto, in a column headed 'route' the proper number or numbers."
In the course of the commission's order it is stated: "It is the common practice of all common regular route carriers to establish joint rates and joint routes."
In the preliminary statement in its brief filed in this court appellant says:
"At the time of the adoption of such Motor Transportation Act in 1923, and ever since, no provision was made as to tickets. Each company, or individual, made his or its own arrangement as to tickets. Originally, these tickets were good only on the route of the issuer. This was entirely in accord with the provisions of the Motor Transportation Act. Increase of business and passengers, multiplication of certificated routes, desire of motor operators to accommodate the public produced the use of coupon tickets good for ride on route of issuing company and over the lines of other companies which connect with or cross the route of the issuing company. This arrangement is based entirely upon agreement by the companies participating. To travel by joint or coupon tickets does not create a necessity for joint routes."
We must keep in mind that we are here dealing only with joint rates. The Motor Transportation Act, Section 614-84 et seq., General Code, specifically authorizes motor transportation companies to establish joint rates and specifically authorizes the commission to adopt rules and regulations governing such schedules of joint rates.
Section 614-16, General Code, provides:
"Every public utility shall print and file with the commission, within ninety days after this act takes effect, schedules, showing all rates, joint rates, rentals, tolls, classifications and charges for service of each and every kind by it rendered or furnished, which were in effect at the time this act takes effect and the length of time the same has been in force, and all rules and regulations in any manner affecting the same. Such schedules shall be plainly printed and kept open to public inspection. The commission shall have power to prescribe the form of every such schedule, and may, from time to time, prescribe, by order, changes in the form thereof. The commission may establish rules and regulations for keeping such schedule open to public inspection, and may, from time to time, modify the same. A copy of such schedules or so much thereof as the commission shall deem necessary for the use and information of the public, shall be printed in plain type and kept on file or posted in such places and in such manner as the commission may order." (Italics ours.)
The foregoing section is made applicable to motor transportation companies by Sections 614-89 and 614-93 a, General Code.
Section 614-92 a, General Code, provides in part:
"Where joint rates have been established by regular route motor transportation companies, and also where regular routes of any motor transportation company connect with each other, any such company, notwithstanding any other provision of this chapter, may use and operate, on its own regular route or regular routes * * * motor vehicles for the transportation of persons, of itself and of any other such company for the movement of traffic, without transfer, between any points on the regular route or routes of such companies, in accordance with the restrictions of the respective certificates of each such company. The commission may prescribe reasonable rules and regulations governing such through operation, interchange * * *."
Section 614-93 a, General Code, provides:
"After a certificate of public convenience and necessity has been granted to a motor transportation company, and time, service, and rate schedules have been filed with the Public Utilities Commission in accordance with law and the rules and regulations of the commission, such rate schedules, including schedules of joint rates, and any changes therein, shall be governed by the laws of Ohio applicable to such schedules by railroads * * *." (Italics ours.)
Section 614-86, General Code, provides in part:
"The Public Utilities Commission of the state of Ohio is hereby vested with power and authority to supervise and regulate each such motor transportation company in this state; to fix, alter and regulate rates; * * * and to supervise and regulate motor transportation companies in all other matters affecting the relationship between such companies and the public to the exclusion of all local authorities in this state, except as hereinafter otherwise provided. The commission, in the exercise of the jurisdiction conferred upon it by this chapter, shall have the power and authority to prescribe rules and regulations affecting such motor transportation companies * * *."
Section 614-27, General Code, provides:
"Whenever the commission shall be of the opinion, after hearing had upon complaint, as in this act provided, or upon its own initiative or complaint, served as in this act provided, that the rules, regulations, measurements or practices of any public utility with respect to its public service are unjust or unreasonable, * * * it shall determine the regulations, practices and service thereafter to be installed, observed, used and rendered, and fix and prescribe the same by order to be served upon the public utility. * * *"
Section 614-92, General Code, cited by appellant, provides in part:
" Except as otherwise expressly provided, it shall be unlawful for any motor transportation company as defined in this act to operate in this state on any route, other than the route provided for in the certificate granted by the commission * * *." (Italics ours.)
The record in this case discloses no violation of the foregoing section and, therefore, it is not necessary for us to discuss the provisions of Section 614-92 a, General Code.
After citing the case of Minerva-Canton Transit Co. v. Public Utilities Commission, 118 Ohio St. 561, 162 N.E. 34, which involved the violation of rules adopted by the commission, and in which Judge Matthias said (page 563): "Broad powers are conferred upon the commission by the Motor Transportation Act (Section 614-84 et seq., General Code), in order that the public convenience and necessity may be met by adequate transportation facilities. Like power and authority have been conferred upon the commission to supervise and regulate the service and require and enforce conformance to the law, and to its own rules prescribed under authority of law, for the purpose of protecting and safe-guarding the interests of the public," appellant in its brief in this court says: "It is apparent, from the foregoing, that broad powers are essential in the commission for specific purposes, to wit, that the public may have adequate transportation facilities and for the purpose of protecting and safeguarding the interest of the public."
We are of the opinion that the portions of the commission's administrative order No. 124 complained of by appellant are neither unlawful nor unreasonable.
We are of the further opinion that it is neither unlawful nor unreasonable for the commission to approve a joint rate whereby a motor transportation company may sell a through ticket for passenger transportation over its own line to a destination on the line of another motor transportation company.
It remains to be determined whether rule 18 of the joint tariff infringes upon the rights of appellant or is contrary to the conditions contained in Atlantic's certificate of public convenience and necessity.
In its order in this case the commission stated:
"It is claimed by the protestant that to permit routing between Chillicothe and Columbus over the line of Atlantic will cause losses in revenue to them, making necessary the elimination of at least part of their service. From the testimony offered, which was vague and uncertain, we are not convinced that any loss of revenue would occur. The protestants have not shown that any loss of passengers may occur that would seriously jeopardize its continued operation."
There is nothing in the record to justify a modification of this finding.
We have studied carefully appellant's argument as to the meaning of the words "destination" and "at or from" contained in the restrictions of Atlantic's certificate, but are unable to arrive at a meaning different from that adopted by the commission in its order. In its order the commission stated:
"It is claimed by protestant that Atlantic is prohibited by the imposed restriction, as an example, from handling a passenger originating at Chillicothe who is traveling on a joint ticket to Akron when transferred to another carrier at Columbus. Such a passenger's destination is not Columbus but Akron. The same holds true of a passenger who travels on a joint ticket from a point north of Columbus over the route of any carrier and transfers to either the protestant's line or the line of the respondent at Columbus, whose destination is Chillicothe. Such passenger is not 'at or from' Columbus, and his origin is not Columbus."
We agree with the following finding of the commission in this proceeding:
"We further find that the restrictions imposed upon certificate No. 1750 do not prohibit the transportation of passengers between Chillicothe and Columbus by Atlantic (1) when originating at either of these points, and travelling upon a joint through ticket providing for a joint through transportation in connection with another carrier when the destination of such passenger is a point beyond either Columbus or Chillicothe, or (2) when destined to either Columbus or Chillicothe and travelling upon a joint through ticket from a point beyond either Columbus or Chillicothe upon the route of a connecting carrier * * *."
Such being our opinion we see no necessity for discussing the procedure to be followed in the amendment of a certificate of public convenience and necessity.
Being of the opinion that the order of the commission appealed from herein is neither unlawful nor unreasonable, such order is hereby affirmed.
Order affirmed.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.
Sometime prior to May 1, 1944, there was filed with the Public Utilities Commission of Ohio (hereinafter called the commission), upon behalf of Atlantic Greyhound Corporation, a "tariff containing schedule stating new individual and joint routing affecting service and routing to become effective on May 1, 1944, designated as follows: Rule No. 18 — First Revised Page A-8 to P. U. C. O. No. 14 issued by C.J. Randall, agent."
On April 24, 1944, upon complaint of The Valley Public Service Company, the commission made an order suspending the operation of such schedule and assigned the matter for hearing.
After hearing the commission rendered what is designated "Report and order of the Commission" in which it made a number of findings. However the only order which was made reads as follows:
"Ordered, that suspended Rule 18, First Revised Page A-8 to P. U. C. O. No. 14, issued by C.J. Randall, agent, be, and hereby it is, found to be not in accord with the requirements of this commission as to the publication of 'routing' and, therefore, shall be cancelled, without prejudice to the filing of routing instructions, in accordance with the rules and regulations of this commission in connection with joint fares, upon statutory notice, and to provide joint fares and routing, in connection with Atlantic Greyhound Corporation, as set forth in the findings herein."
The relief sought by appellant was the cancellation of the proposed tariff and that relief was granted.
We are confronted here with an anomalous situation. Appellant files an appeal from the order of the commission in its favor. An appeal may be prosecuted from a judgment or final order of a court or administrative tribunal only when such judgment or order adversely affects the rights of the appellant.
The tariff having been cancelled, appellant's rights were not affected by any of the findings of the commission and consequently it is not presently in a position to prosecute an appeal. This appeal should be controlled by the same principles applied in the case of Squire, Supt. of Banks, v. Guardian Trust Co., 144 Ohio St. 266.
In conformity with the provisions of Section 614-93 a, General Code, the commission granted authority to file new routing instructions in connection with joint fares and further provided that statutory notice should be given. If and when new routing instructions are filed, appellant must be given the statutory notice and then will be entitled to be heard.
The majority opinion refers to Section 12223-2, General Code, as to what is a final order.
The only order made by the commission, final or otherwise, was that the tariff should be cancelled.
The case of Ohio Contract Carriers Assn., Inc., v. Public Utilities Commission, cited in the majority opinion, holds that appeal lies only to correct errors injuriously affecting the appellant.
This tariff has never been, nor is it now in effect and appellant cannot be injuriously affected by a nonexistent tariff.
Upon the record before us the present appeal should be dismissed.