McCLURE, RECR. v. P. U. C., 121 Ohio St. 428 (1929)

169 N.E. 449

McCLURE, RECR., ET AL. v. PUBLIC UTILITIES COMMISSION OF OHIO. PENNSYLVANIA RD. CO. v. PUBLIC UTILITIES COMMISSION OF OHIO.

Nos. 21933 and 21948Supreme Court of Ohio.
Decided December 18, 1929.

Public Utilities Commission — Motor transportation companies — Public convenience and necessity — Territory not served by protesting carriers — No real competition or substantial financial losses involved.

ERROR to the Public Utilities Commission.

These cases arise as error proceedings from an order of the Public Utilities Commission of Ohio which authorized E.M. Seving, doing business as Columbus — St. Marys — Ft. Wayne Transportation

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Company, to operate a motor transportation company for the carrying of passengers between Columbus, Ohio, and the Indiana-Ohio state line, with its final destination Ft. Wayne, Indiana. The only part of the route involved in these error proceedings is that part which extends from Columbus westerly via United States route No. 40, through the villages of Rome, Alton, West Jefferson, Mechanicsburg, and Mutual, to the town of Urbana. The certificate issued restricted the applicant from picking up passengers between various points, including those whose ride is between Columbus, Ohio, and West Jefferson, Ohio, or points intermediate.

The application was protested by J.H. McClure, receiver of the Indiana, Columbus Eastern Traction Company, by the Dayton Columbus Transportation Company, a motor transportation company, by the Pennsylvania Railroad Company, and by the Western Ohio Railway Power Company. Error proceeding No. 21948, the protest of the Pennsylvania Railroad Company, involves the same facts and record as error proceeding No. 21933, the protest of J.H. McClure, receiver. Each error proceeding is directed to the permission granted in the certificate to carry through passengers from Columbus to Urbana and vice versa, and from Urbana to West Jefferson and vice versa.

Further facts are stated in the opinion.

Messrs. Martin Corry, for Mr. McClure, receiver.

Messrs. Henderson, Burr Randall, for the Pennsylvania Railroad Company.

Mr. Gilbert Bettman, attorney general, and Mr. T.J. Herbert, for the Public Utilities Commission.

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BY THE COURT.

The protestant argues that public convenience and necessity do not require additional service between Columbus and Urbana and between West Jefferson and Urbana. The only direct service along this route is the line of the Pennsylvania Railroad Company, which operates five trains daily from Columbus to Urbana, leaving Columbus at 2 a. m., 9:30 a. m., 1:45 p. m., 2:48 p. m., and 6 p. m. The railroad also operates three regular trains with stops at Urbana and Columbus. These trains leave Urbana at 7:27 a. m., 10:09 a. m., and 6:56 p. m. The record does not contain any evidence as to the amount of service rendered by the railroad between Columbus and Urbana in terms of passengers carried.

The service of the traction cars, while the schedules are frequent, involves a very round-about route to travel from Urbana to Columbus, by either the Indiana, Columbus Eastern Traction Company or by the Dayton Columbus Transportation Company, and necessitates that the passenger shall go via Springfield. With the present system of transportation it is a journey of 50 miles to go from Mechanicsburg to Columbus. The service now rendered by bus and traction from Urbana to Columbus requires from approximately 50 minutes to an hour and a half more time than the proposed schedule of the motor transportation company, and approximately 27 more miles via London and Springfield. The local cars of the Indiana, Columbus Eastern operate via London. The fare between Urbana and Columbus is also 45 cents more each way by traction and by bus than by the route proposed.

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Between Urbana and West Jefferson, the distance by interurban and bus route is some 42 miles as compared with 26 miles over the route allowed in the present certificate.

This case is differentiated from previous controversies in this court involving protests by existing transportation companies against the allowance of motor transportation certificates in that the record establishes that there is no genuine competition for this service. For the period of five months, as the record shows, the traction did not quite carry an average of two passengers a day from Urbana to Columbus, and approximately the same figures obtain between Columbus and Urbana. During the same five months, fourteen tickets were sold on the Dayton Columbus Transportation Company for transportation between Urbana and Columbus, and from Columbus to Urbana there were no tickets sold during that same period for transportation over the Dayton Columbus Transportation Company. Hence we have a record which establishes that the protesting companies do not serve the territory in question; that no real competition is involved; and that the granting of the certificate will in no substantial way affect the financial condition of the traction companies.

Order affirmed.

MARSHALL, C.J., KINKADE, ROBINSON, JONES, MATTHIAS, DAY and ALLEN, JJ., concur.

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