#### Wilson, d. b. a. Wilson Motor Transit, et al., Appellants, *v.*Public Utilities Commission of Ohio, Appellee. The Kaplan Trucking Co. et al., Appellants, *v.*Public Utilities Commission of Ohio, Appellee.

(Nos. 31796 and 31807

Decided April 5, 1950.)

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      *Messrs. Dargusch, Garen, Greek S King, Mr. Noel F. George*and *Mr. John W. Gee,*for appellants in cause No. 31796.

*Messrs. Dargusch, Garen, Greek & King, Mr. Noel F. George, Mr. John W. Gee*and *Mr. Herbert*Baker, for appellants in cause No. 31807.

*Mr. Herbert 8. Duffy,*attorney general, and *Mr. Kenneth B. Johnston,*for appellee.

By the Court.

In each case the protestants contend that the applicant, the I. & S. Trucking, Inc., is not ‘ ‘ a proper person to whom to grant a permit, ’ ’ as provided in Section 614-109, G-eneral Code, and that the granting of the application is not consistent with the public interest and the declared policy of the state of Ohio.

The appellants and the appellee cite the cases of *Bray*v. *Public Utilities Commission,*139 Ohio St., 409, 40 N. E. (2d), 666, and *Jones*v. *Public Utilities Comission,*141 Ohio St., 237, 47 N. E. (2d), 780. In the first of these cases this court held:

> “1. The primary purpose of legislative enactment *344for the regulation of carriers through the Public Utilities Commission is to secure the best transportation service possible, and not to conserve the private interest of any carrier, unless the public interest demands it.

> *“2.*The regulation of private shipping through private contract carriers should not unnecessarily interfere with the right of private contract, and a shipper should be afforded an opportunity to secure transportation at the most advantageous rates, consistent with the public interest.”

In the second cited case this court held:

> “1. Mere proof of an agreement between a contract motor carrier and a shipper for the carriage of materials does not afford a sufficient basis for the granting, by the Public Utilities Commission, of a permit for such carriage over the protest of an existing common carrier who is ready and prepared to meet adequately and satisfactorily the needs of the shipper. *(Bray*v. *Public Utilities Commission,*139 Ohio St., 409, distinguished.)

> *“2.*In order to entitle a contract motor carrier to amend his permit by adding a shipper to his list, sufficient facts should be presented to enable the commission to find that the granting of his application to amend will comport with the declarations of policy contained in Sections 614-83 and 614-109, General Code, enjoining the regulation of the commercial motor vehicle business in an orderly, efficient and economically sound manner in furtherance of the public interest.

> “3. Ordinarily, it is incumbent upon a contract motor carrier who seeks permission to add a shipper to his list, to show a deficiency in the service of a subsisting and protesting common carrier, that there is a demand for the proffered service, and that the filling of *345such demand will not conflict with the public interests.”

In each of the instant cases the protestants insist that the applicant does not possess the equipment necessary to render the service involved. This is admitted. However, a study of the records discloses evidence which, if believed, shows that the president of the applicant company is a man who has had 18 years of experience in the various phases of the motor carrier business, that the company possesses capital in the form of cash in a bank, that additional capital is available, that arrangements have been made for the purchase of equipment, and that, if necessary, additional equipment can be leased by the applicant, as is done frequently in the motor transportation business. Hence, there is evidence tending to show that the applicant is “a proper person to whom to grant a permit,” and it is not the function of this court to substitute its judgment for that of the Public Utilities Commission on questions of fact.

The situation is the same with reference to the contention of the protestants that the granting of the applications is not consistent with the public interest and the declared policy of the state.

The matter is well summarized in the following analysis of the evidence by the attorney examiner for the commission in the first case:

> “The testimony and records of the commission show that the service, which applicant seeks to render, is specialized and particularly suited to meet shipper’s intrastate transportation needs; that the minimnTn tonnages specified in shipper’s contracts, with existing contract carriers, are inadequate to meet the shipper’s needs; that, in some instances, protesting contract carriers have failed to furnish the shipper with service when requested; that, on occasions, shipper’s loading *346schedules have been interrupted due to the nonavailability of protesting carriers’ trucks; and that, to a considerable extent, protesting carriers have been serving the shipper at their convenience.

> “The application and formal requirements are in proper order. The applicant is a proper person to whom the commission may grant the authority herein sought. The proposed operation and contract of carriage appears to be in full compliance with the laws of Ohio and rules of the commission, and to be consistent with the declared policy and purpose of the regulation of transportation by common and contract carriers by motor vehicle as provided in Sections 614-83 and 614-109 of the General Code.”

The same reasoning is applicable to the second case.

Hence, under the evidence in these cases the Public Utilities Commission was not in error in granting the applications.

*Orders affirmed.*

Weygandt, C. J., Hajrt, Zimmerman, Stewart and Turner, JJ., concur.

Zimmerman, J.,

concurring. In my opinion, these*

cases are close ones on the facts. However, there is evidence of a persuasive nature to sustain the findings and orders of the commission and this court has often said that where findings and orders of the commission are based on substantial evidence, the court will not interfere by substituting its judgment for that of the commission.

As I view the matter the orders of the commission herein cannot be denoted as unreasonable or unlawful within the purview of Section 544, General Code.-

The writer entertains. no prejudice against commercial motor carriers, but in these days, when it is a *347matter of common knowledge that the public thoroughfares of the state are inadequate, overburdened and overcrowded, the commission should exercise care and discernment in granting the applications of motor carriers to use these avenues of travel.

After all, the public interest is always paramount and that interest is not limited to those furnishing motor transportation for hire and to those desiring such transportation, but embraces a much wider field.

For instance, there are other travelers by motor vehicle using the highways of the state for business and pleasure who contribute toward the construction and upkeep of such highways and who are entitled to consideration. The safety, welfare and convenience of these people are matters for concern and recognition.

Should the commission become lax or indifferent and by its actions allow the highways to be used by commercial motor carriers which are not reasonably necessary to meet actual transportation demands, the public interest would most certainly be adversely affected thereby.

Matthias, J.,

dissenting. In my opinion, the orders of the Public Utilities Commission in these cases typify an increasing disregard of the fundamental principle that in the matter of the regulation of motor transportation carriers, "the purpose of the motor transportation legislation is to secure to the public necessary and convenient common carrier service over the highways, but not to surrender any of the rights of the public in such highways to persons, partnerships, or corporations operating motor transportation lines; that such certificates are issued for the benefit of the public and not for the benefit of the recipient.” *Pennsylvania Rd. Co.*v. *Public Utilities Commission,*116 Ohio St., 80, 88, 155 N. E., 694; *Mc*
      *348
      *Lain*v. *Public Utilities Commission,*110 Ohio St., 1, 143 N. E., 381; *Bray*v. *Public Utilities Commission,*139 Ohio St., 409, 413, 40 N. E. (2d), 666; and *Jones*v. *Public Utilities Commission,*141 Ohio St., 237, 47 N. E. (2d), 780.

Additional service should be authorized only when the service provided is inadequate or will not be made adequate by existing facilities. *Scioto Valley Ry. & Power Co.*v. *Public Utilities Commission,*115 Ohio St., 358, 154 N. E., 320; *Stark Electric Rd. Co.*v. *Public Utilities Commission,*118 Ohio St., 405, 161 N. E., 208; *New York Central Rd. Co.*v. *Public Utilities Commission,*123 Ohio St., 370, 175 N. E., 596; and *H. & K. Motor Transportation, Inc.,*v. *Public Utilities Commission,*135 Ohio St., 145, 19 N. E. (2d), 956.

Where application for permission to operate additional transportation by trucks over the public highways is involved, as herein, the interests of the public should be given first consideration and the “public” is not limited to carriers and shippers. The benefit of proposed lower rates and more convenient schedules for a particular shipper is no indication that the interest of the public is being served by the granting of the certificates sought.

“Public convenience and necessity” are prerequisites to the granting of certificates to operate motor carriers over the public highways and are limitations upon the Public Utilities Commission so that no more trucks, or busses, shall occupy the highways than are required to provide adequate transportation service for the convenience of the public.

The findings by the commission that the shippers would secure certain conveniences and special services by granting another person' permission to procure trucks and place them on the highways in addition to the trucks of other carriers now serving the shippers fail completely to show that public convenience and *349necessity would be served by the granting of these additional certificates.

The orders of the commission should, therefore, be reversed.

Taft, J., concurs in the foregoing dissenting opinion.