310 N.E.2d 587
No. 73-777Supreme Court of Ohio.
Decided April 24, 1974.
Motor transportation companies — Public Utilities Commission — Application for irregular route certificate — Burden of proof on applicant — To show public need — That granting application will correct deficiency in existing service — R.C. 4921.10 — Order of commission granting application — Unreasonable and unlawful, when.
APPEAL from the Public Utilities Commission.
In February 1970, Husman Express Company and Duff Truck Line, Inc., filed separate applications with the Public Utilities Commission for certificates of public convenience and necessity to transport property over irregular routes from and to Bryan, Ohio. Both applications were later voluntarily restricted by the applicants against the transportation of household goods, office furniture and fixtures, commodities usually handled in dump trucks, and commodities which, by reason of size or weight, require special equipment to load or unload.
A hearing on both applications was conducted before an attorney-examiner on March 12, 1970. Appellant, Bryan Truck Line, Inc., which held a certificate of public convenience and necessity to transport property over irregular routes from and to Bryan, and which sought to have the applications denied, was represented at this hearing.
On November 5, 1971, the examiner filed her report. She found that although there was a need shown for additional transportation service of less-than-truckload (LTL) freight from and to Bryan, there was insufficient evidence to support
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a finding that appellant Bryan Truck Line was unable to provide the required service. The report recommended that both applications be denied.
This recommendation was rejected by the commission, in an opinion and order filed on May 24, 1973. The relevant sections of the opinion stated:
“(2) There is a public need for the overnight transportation of LTL shipments from Bryan, Ohio to points throughout the state of Ohio.
“* * *
“(6) Protestant currently may not possess sufficient equipment to provide the service needed by the public in Bryan, Ohio, but appears to be financially capable of obtaining such additional equipment.
“(7) Each of the applicants possess the necessary equipment, financial ability, experience and willingness to perform the service needed by the public in Bryan, Ohio.
“* * *
“(5) A public convenience and necessity has been demonstrated by applicants for the overnight transportation of LTL freight shipments from and to Bryan, Ohio.
“* * *
“(7) The service being provided by protestant in Bryan, Ohio, is inadequate to meet the needs of the public shippers in that area.
“(8) There is an established need for additional service to the shipping public in Bryan, Ohio, and for the establishment of rates governing such service.”
Pursuant to R.C. 4921.10, the commission gave appellant 60 days to improve its service by providing LTL freight service from and to Bryan on an overnight basis. The commission then ordered that both applications be granted if, at the conclusion of a specified “compliance test period,” the evidence was insufficient to show that appellant had improved its service as required.
Appellant’s application for rehearing was denied by the commission. Appellant then perfected its appeal to this court as a matter of right.
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Messrs. Sanborn, Brandon Duvall and Mr. James Duvall, for appellant.
Mr. William J. Brown, attorney general, Mr. Keith F. Henley, Mr. Marvin I. Resnik, Messrs. Stiverson Alden and Berry Kirk Co. L.P.A., for appellees.
Per Curiam.
The certificates sought by the applicants would permit them to provide the same services which appellant is already authorized to provide. The decisional mechanism to be followed in such a situation is described in Motor Service Co. v. Pub. Util. Comm.
(1974), 37 Ohio St.2d 1, 305 N.E.2d 788, as follows:
“R.C. 4921.12, read in conjunction with R.C. 4921.10, provides a two-tier process for the granting of a new certificate of public convenience and necessity in certain cases. Where an applicant seeks authority to furnish service over an irregular route or territory, and there exists a certificate holder already authorized to provide that service, the applicant must first show a need for its proposed additional operation. Such a showing by the applicant necessarily involves a demonstration that the service being offered by the existent carrier fails, in some respect, to adequately meet the public convenience and necessity. If the commission agrees, after notice and hearing, that the current certificate holder’s service is deficient, the commission must afford the holder a reasonable time within which to improve its service before granting the applicant’s request. In practice, an order is issued requiring the holder to remedy any deficiencies within 60 days. Thereafter, another hearing is held to determine whether that carrier has complied with the commission’s order. This compliance hearing represents the second tier of the process required by R.C. 4921.12.”
Motor Service Co. involved an appeal from an order as to the second tier of the process. The present case involves an appeal from an order as to the first tier.
An applicant for an irregular route certificate of public convenience and necessity to transport property from
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and to a specific location assumes the burden of proving not only that there is a need for such service, but also that the granting of the application will correct any deficiency in the service provided the public by an existing certificate holder. Mohawk Motor v. Pub. Util. Comm. (1967), 11 Ohio St.2d 238, 228 N.E.2d 611. If there is no evidence in the record to support a finding that an applicant has sustained those burdens, or if such a finding is manifestly against the weight of the evidence, a decision by the commission favorable to the applicant will be reversed as unreasonable. Mohawk Motor v. Pub. Util. Comm., supra; Mohawk Motor v. Pub. Util. Comm. (1953), 159 Ohio St. 77, 110 N.E.2d 909; D.G. U. Truck Lines v. Pub. Util. Comm.
(1953), 158 Ohio St. 564, 110 N.E.2d 587.
The record in the present case discloses that there is a need for prompt, less-than-truckload freight service from and to Bryan, Ohio. However, according to the commission’s findings of fact, a public need was demonstrated for overnight
less-than-truckload service. Predicated upon this finding, the commission concluded that a public convenience and necessity had been demonstrated by the applicants for overnight transportation of less-than-truckload freight shipments, and appellant was ordered to provide this service. Additionally, the commission ruled that each applicant could provide the needed service, and therefore their applications would be granted if appellant failed to comply with the improvement order.
Assuming that there is sufficient evidence in the record to support the commission’s finding of a need for overnight, less-than-truckload service from and to Bryan, Ohio, the record is totally devoid of any evidence that either applicant would, if its application for a certificate were granted, provide the overnight service. The order of the commission is unreasonable and unlawful, and is, therefore, reversed.
Order reversed.
O’NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
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