Gene's, Inc.,
v.
Pub. Util. Comm

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of OhioJun 15, 1977
50 Ohio St. 2d 181 (Ohio 1977)
50 Ohio St. 2d 181364 N.E.2d 10

No. 76-998

Decided June 15, 1977.

Public Utilities Commission — Application for certificates of public convenience and necessity — Sixty-day order — Specificity required — Commission's failure to adopt restrictive amendment — Not unreasonable, when.

APPEAL from the Public Utilities Commission.

This appeal by Gene's, Inc., appellant, involves numerous orders and entries issued by the Public Utilities Commission (commission) and this court's decision in Gene's, Inc., v. Pub. Util. Comm. (1973), 36 Ohio St.2d 162.

On March 21, 1969, A.L. Smith Trucking, Inc., applicant and intervening appellee herein, filed an application with the commission seeking a certificate of public convenience and necessity and subsequent authority to transport certain grains and machinery.

The application sought the following authority:
"To transport grain, feed, feed ingredients, seed, fertilizer, farm machinery, lumber and building supplies from and to Darke and Miami Counties.
"Farm machinery, lumber and building supplies from and to Mercer County.
"Restricted as follows:
"(a) Against the transportation of bulk commodities in tank or hopper type vehicles.
"(b) Against the transportation of farm machinery from and to Coldwater, Ohio.
"(c) As to fertilizer from and to Miami County, to traffic moving from and to Spring Creek Township."

This application was protested at a public hearing by appellant and Piqua Transfer Company (protestant).

On August 18, 1971, the commission issued an opinion and order which found that public convenience and necessity existed for the proposed service since the service furnished by appellant and the protestant was not reasonably adequate. Pursuant to R.C. 4921.12, then in effect, the commission issued a 60-day order which required appellant and the protestant to improve their service. The order stated the following particulars:

"(a) Provide by purchase or lease, the necessary equipment required to respond to all reasonable demands within 24 hours for adequate service of shipments of grain, feed, feed ingredients, seed, fertilizer, farm machinery, lumber and building supplies from and to Darke and Miami Counties as restricted at the hearing and farm machinery, lumber and building supplies from and to Mercer County as restricted.

"(b) Provide non-emergency service within a reasonable time for the transportation of fertilizer and other commodities for which protestants hold authority.

"(c) Adequately publicize in newspapers, yellow pages of the telephone directory when available, circulars or letters and other advertising media to the shipping public handling the commodities involved in the application and to the operators of grain elevators and other prospective shippers in the counties involved.

"(d) Give reasonable assurance that service on a 24 hour notice basis, as set forth herein, will continue after the end of the 60 day period."

On October 12, 1971, the commission granted by order a rehearing of the August 18, 1971, opinion and order, limited to the presentation of oral arguments on the question of whether applicant had sustained its burden of proving that public convenience and necessity existed to allow the conditional grant of authority contained in the August 18, 1971, opinion and order.

This rehearing was held on November 2, 1971. The applicant offered a restrictive amendment to satisfy the interests of the protestant, which effectively deleted the transporting of farm machinery, lumber and building supplies between Darke and Miami Counties from the conditional authority.

On April 18, 1973, the commission by entry affirmed its August 18, 1971, opinion and order in all particulars, reinstituted the 60-day order effective that date and set the hearing for compliance for July 2, 1973. The commission did not make reference to the restrictive amendment tendered by the applicant at the rehearing.

On June 8, 1973, appellant filed its notice of appeal of the commission's August 18, 1971, order to this court.

On June 21, 1973, appellant filed its compliance report with the commission contending that it had complied with the August 18, 1971, 60-day order, as reinstituted on April 18, 1973.

This court, on December 19, 1973, rendered a decision that the August 18, 1971, opinion and order was neither unreasonable nor unlawful, and affirmed it. ( Gene's, Inc., v. Pub. Util. Comm., supra.)

On August 8, 1974, the commission issued an opinion and order which found that appellant was in compliance with the 60-day order, and thus denied applicant a certificate of public convenience and necessity. This order reflected for the first time the restrictive language tendered by applicant on November 2, 1971.

The commission granted applicant's request for a rehearing, restricted to certain issues pursuant to R.C. 4903.10.

This rehearing was held on October 18, 1974. The commission, by opinion and order of May 27, 1976, vacated its order of compliance of August 8, 1974, and ordered, inter alia, that "* * * the application of A.L. Smith Trucking, Inc., for an irregular route certificate of public convenience and necessity be * * * granted." On July 14, 1976, appellant's request for a rehearing was denied.

The matter is before this court upon appeal as a matter of right.

Paul F. Beery Co., L.P.A., and Mr. Michael Spurlock, for appellant.

Mr. William J. Brown, attorney general, Mr. Charles S. Rawlings and Mr. Mark Sholander, for appellee Public Utilities Commission. Messrs. Sanborn, Brandon Duvall, Mr. James Duvall and Mr. E.H. van Deusen, for appellee intervenor.


Appellant asserts that the 60-day order did not detail with sufficient particularity the manner in which appellant was to improve its service.

R.C. 4921.10 and 4921.12, then in effect, provide a two-tier process for the granting of a new certificate of public necessity and convenience by the commission. The first tier is a determination of whether a new certificate should be granted to an applicant, which necessarily requires a showing by the applicant that the service of the current certificate holder is inadequate. If the commission so finds, it will issue an order requiring the holder to remedy any deficiencies within 60 days. The second tier is a later determination of whether the current certificate holder has complied with the provisions of the 60-day order. See Motor Service Co. v. Pub. Util. Comm. (1974), 37 Ohio St.2d 1, 7.

R.C. 4921.10 and 4921.12 have been amended effective September 1, 1976, to eliminate the 60-day order as a condition precedent to the granting of new certificates of public convenience and necessity.

A 60-day order must state, with specificity, the ways in which an existing transporter's service is inadequate. Commercial Motor Freight v. Pub. Util. Comm. (1951), 156 Ohio St. 360. Such specificity is necessary (1) to fully apprise the motor carrier of how to improve his service, and thereby to avoid the impending consequences of his failure to meet the public need, and (2) to enable this court to make a meaningful review of the commission's opinion and order, should the carrier choose to appeal the commission's order before attempting compliance. See Motor Service Co. v. Pub. Util. Comm., supra, at page 8.

Appellant previously had this court review the commission's determination that public convenience and necessity demanded additional service, in Gene's, Inc., v. Pub. Util. Comm., supra ( 36 Ohio St.2d 162). If appellant wished this court to review the issue of its inability to decipher the commission's 60-day order and thus comply with it, appellant should have raised that issue when last before us, not at this stage. Since appellant did not ask this court to require additional particularity by the commission, it implied that it fully understood the order. Appellant thus attempted to comply at its peril, for it is the commission which determines whether its order has been complied with. Such determination will not be disturbed by this court unless it is manifestly against the weight of the evidence, or is unreasonable or unlawful. H. K. Motor Transportation, Inc., v. Pub. Util. Comm. (1939), 135 Ohio St. 145.

Upon review of the record, we find that the commission's order of May 27, 1976, is not manifestly against the weight of the evidence, nor is it unreasonable or unlawful. Appellant's first proposition of law is overruled.

Appellant urges further that the restrictive amendment to the application offered by appellee intervenor was tacitly accepted by the commission prior to this court's decision in Gene's, Inc., supra, and that this proposed amendment was offered by the applicant to appease the protestant.

The restrictive amendment was offered on November 2, 1971, far in advance of our decision in Gene's, Inc. We will not allow appellant to now object to the commission's failure to adopt the amendment before August 8, 1974, since appellant was silent on that amendment when last before us and did not assert the issue to the commission until well subsequent to the case.

The commission argues that it did not have the authority to act on the amendment because of its absence in Gene's, Inc. Such reasoning is not unreasonable. Appellant's second proposition of law is overruled.

We find that the order of May 27, 1976, is not unreasonable or unlawful, or manifestly against the weight of the evidence, and thus the order is affirmed.

Order affirmed.

O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.