#### The Cleveland Ry. Co. et al., Appellants, *v.*Public Utilities Commission of Ohio, Appellee.

(No. 28072

Decided July 24, 1940.)

*303
      *Messrs. Squire, Sanders & Dempsey, Mr. H. J. Crawford*and *Mr. Frank Harrison,*for appellant, The Cleveland Railway Company.

*Mr. Henry S. Braimard,*director of law, and *Mr. Edward Blythin,*for appellant, city of Cleveland.

*Mr. G. E. Hartshorn,*director of law, for appellant, city of Cleveland Heights.

*Mr. Earl W. Aurelms,*for appellant, village of Uni-' versity Heights.

*Mr. Thomas J. Herbert,*attorney general, and *Mr. Kenneth L. Safer,*for appellee.

By the Couet.

The present controversy involves the interpretation of those portions of Section 614-84, General Code, which read:

> “(a) The term ‘motor transportation company,’ or ‘common carrier by motor vehicle,’ when used in this chapter, shall include, and all provisions of law regulating the business of motor transportation, the context thereof notwithstanding, shall apply to every cor*304poration, * * * when engaged, or proposing to engage, in the business of transporting persons or property, or both, or of providing or furnishing such transportation service, for hire * ** **for the public in general, in or by motor propelled vehicles of any kind whatsoever, * * * over any public highway in this *state; provided, however, that the term ‘motor transportation com*pany’ *as used in this chapter shall not include any * * * company or corporation,*wherever organized or incorporated: * ** **

> “(2) *In so far as they*own, control, *operate*or manage a motor vehicle or *motor vehicles*used for the transportation of persons or property, or both, and *which are operated exclusively within the territorial limits of a municipal corporation, or within such limits and the territorial limits of municipal corporations immediately contiguous thereto * ***.” (Italics ours.)

It is the contention of the appellants that the motor coach line in question is not subject to the jurisdiction of the Public Utilities Commission since the operation is “exclusively within the territorial limits of a municipal corporation [Cleveland Heights], or within such limits [Cleveland Heights] and the territorial limits of municipal corporations [University Heights and Cleveland] immediately contiguous thereto [Cleveland Heights].”

The appellants maintain that the exemption as expressed by the legislative language applies and the Public Utilities Commission does not have jurisdiction of an operation whenever a route is within a group of municipalities, each contiguous to one — or any one— municipality of the group. It is the position of the appellants that such an exemption is not governed éither (1) by the principal office or main properties of the corporation, (2) by the largest municipal corporation in a group, (3) by the municipal corporation which is a terminus of a motor bus line, (4) by the fact that every municipal corporation in the group is not con*305tiguous to every other municipality therein, (5) by contiguity “on the route,” or (6) by whether the transportation company has franchises from the municipalities, although in tjie present proceeding it is stipulated they have so consented.

Counsel for the commission insist that this court rejected the same propositions when advanced by appellants in the two cases entitled *City of Cleveland*v. *Public Utilities Commission,*130 Ohio St., 503, 200 N. E., 765 (the *Bedford case),*and 134 Ohio St., 216, 16 N. E. (2d), 339 (the *Beechwood case).*It is the position of the appellee that the word “immediately” is controlling and that in ascertaining contiguity Cleveland is the key city and not Cleveland Heights. It is the claim of the commission that in the case at bar Cleveland is the basis of municipal exemption and that immediate contiguity of the municipalities is determined with reference to that point and not to the city or village which by coincidence happens to be in the center of a particular motor bus operation.

In the so-called *Bedford case, supra,*this court had before it an appeal by The Cleveland Railway Company and the city of Cleveland challenging the jurisdiction of the commission to certificate a motor bus operation through the municipalities of Cleveland, Garfield Heights, Maple Heights and Bedford. Stated in an inverse order, this court in the syllabus (1) upheld the constitutional authority of the commission to grant the certificate and fix the terminus in the city of Cleveland without its consent, (2) declared the policy of subordinating the rights of municipalities to regulate motor transportation to the authority granted the commission and (3) affirmed the action of the commission in granting the certificate without the consent of the municipal corporations as they were not all immediately contiguous, the non-contiguity of Bedford and Cleveland being specifically referred to in the syllabus.

In the so-called *Beechwood case, supra,*the principal *306contention revolved around whether the extension of the motor hus route eastward from University Heights was a sham and it was conceded that the commission would have jurisdiction if the' route extended through Cleveland, Cleveland Heights, University Heights and into Beechwood. This court sustained the jurisdiction of the commission over the operation.

In the *Bedford*and *Beechwood cases*this court had under consideration the question of certification of operations between four municipalities. We now have before us an operation between only three municipalities. The reasoning applied to sustain the authority of the commission in those two proceedings applies with equal force in the present, proceeding to exempt the operation here involved.

Since the commission did not have jurisdiction, its order is reversed. *,*

^ *Order reversed.*

Day, Zimmerman, Williams, Matthias and Hart, JJ., concur.

Weygandt, C. J.,

dissenting. In the *Bedford*and *Beechwood cases*this court had under consideration the question of certification of operations among four municipalities. The authority of the commission to fix a terminus under paragraph (c) of Section 614-84, General Code, for an operation among only three municipalities was not considered or decided. That paragraph clearly vests the commission with authority to determine whether an operation is between fixed termini. Although the commission in this proceeding did not supplement its order with the reasons therefor, it is evident from the stipulation and the order that the commission considered the city of Cleveland as a terminus. Exhibits submitted during the hearing compel the conclusion that the western and eastern termini are in Cleveland and University Heights respectively. Therefore, the order of the commission was neither unlawful nor unreasonable and should be affirmed.