CONCURRING OPINION OF
CHAIRMAN KRUEGERNo. 26094.
Decided August 12, 1957.
This matter was heard jointly by the Attorney Examiner, and decided by the Commission upon the consolidated record, with Case No. 20,363, In The Matter Of The Extension Of The Commercial Zone Surrounding The City Of Youngstown, Ohio, And Case No. 26,095, In The Matter Of The Establishment Of A Commercial Zone Comprised Of The City of Warren, Ohio, And The Industrial Territory Adjacent To And Commercially A Part Thereof.
Although different factual situations as to the Scope of the respective commercial zones are involved in each of these cases, basically comparable questions of law are attendant thereto.
No exception whatsoever is taken to the findings of fact reached by the majority opinions in these three proceedings insofar as such findings apply to the factual efficacy of the establishment of said zones and the geographical scope of the commercial zones thus established. These findings of fact appear to be well substantiated by the weight of the evidence upon the joint record herein.
. It is believed, however, that prospective administrative determination by this Commission might well be clarified by explanatory review and qualifications herein of certain of the conclusions of law drawn by the respective majority opinions in these three orders.
First, the majority opinion construes the term “commercially a part of,” as employed in §4921.26 R. C.; to mean “COMMERCIALLY A PART OF FOR TRANSPORTATION PURPOSES.” This construction is predicated upon the majority’s interpretation of the Ohio Supreme Court’s recent decision in Beiter Lines v. P. U. C. O., 165 Oh St 1, the leading case substantiating the extent of this Commission’s power to establish and enlarge commercial zones under the aforecited §4921.26 R. C. Such descriptive limitation upon this statutory language is apparently bottomed- on dicta contained in the Court’s unanimous opinion written by Hart, J„ because the syllabus of that case does not so qualify the term in question.
Insofar as the majority’s qualifying construction of this term is restricted and applied to the determination by the Commission of the geographical boundaries of commercial zones, such interpretation would appear, as a matter of law, to be implicit in the purpose and provisions of enabling §4921.26 R. C. Moreover, it accords administratively with the basic premises of the legislative transportation policy of this State, as enunciated in §4921.03 R. C., by which the public interest is declared to be paramount.
The majority opinion, it may be claimed, is not expressly specific as *457to the degree of “a demand or requirement on the part of shippers or receivers of freight in the proposed zone area . . which should be manifested. It is apparent from the majority opinions that this degree is less than evidence of “convenience and necessity” and more than a “mere showing of ‘community of interest’ ” as delineated by those opinions. More specificity in this regard, however, would not be practicable nor possible because both the efficacy and scope of each proposed commercial zone must be determined by the Commission upon the facts peculiar to that zone proceeding. In any event, this construction is more definite then than the “community of interest” guidepost previously employed in Commission commercial zone determinations and should assure public shipper-receiver representation and testimony in these zone proceedings.
Seconly the majority opinions in these three cases restate and apply the Commission’s policy with respect to the automatic granting of so-called “reciprocity” or reciprocal rights to all carriers holding authority at any peripheral point or area in a proposed zone, as well as to those carriers holding authority within the municipalities about which a commercial zone is proposed to be created, to serve the entire area encompassed within the established commercial zone. This fixed policy of “reciprocity” was effected by the Commission in Rule No. 28 of its Administrative Order No. 155, under date of October 11,' 1956. This rule reads in part pertinent hereto as follows:
“Reciprocal rights to serve each commercial zone created by this Commission shall be extended to all carriers holding authority at any point in the zone as well as to those carriers holding authority within the municipality about which a zone is being created.
“No restrictions of any kind shall be imposed upon the authority of carriers located in a commercial zone to serve that zone other than those restrictions and limitations already contained in their specific certificates. No restrictions contained in existing certificates shall be removed or changed by virtue of the establishment of a commercial zone.”
It is evident that the above-quoted provisions of this Administrative Order possess the weight of existing law until decreed to be unlawful in whole or in part by the Supreme Court of Ohio, otherwise amended administratively by this Commission, or until subsequent legislative enactments would modify substantively aforesaid §4921.26 R. upon which these provisions are predicated. Thus, it follows that each and every member of this Commission is bound by this administratively adopted policy of “reciprocity” until it would be changed as above indicated.
It does not follow, however, that' any Commissioner’s divergence of opinion as to the regulatory application or propriety of the policies fixed by this or any other Administrative Order may not be expressed by way of a concurring opinion.
Exception is taken, therefore, to this Commission’s present policy of automatically granting reciprocal rights to. all “peripheral” motor carriers to serve the municipality and other territory around which a new commercial zone is established in those instances where such peripheral carriers were not authorized, previous to the establishment of said zone, *458to serve that municipality or other territory subsequently encompassed within a newly created or enlarged zone.
A like exception is taken to the similarly fixed policy of automatically granting reciprocity to all of the municipally situated carriers to serve the entire area, including every point or specific territory, encompassed within a newly established or enlarged commercial zone.
Generally, it may well be lawful and administratively sound to grant such enhanced operating rights to all carriers, authorized to operate within any areas or from any point encompassed within a newly created zone, to provide transportation services throughout that zone. Nonetheless, for the Commission to follow such a fixed policy is to seemingly abdicate the exercise of its discretion, unless the dictates of regulation in the public interest should demand the adoption of such an immutable policy In this instance, however, both the legal and policy propriety of such extensions of the operating rights of these peripheral carriers would seem to be better bottomed upon the commercial motor transportation requirements manifested by the record in each commercial zone proceeding rather than upon a fixed and preconceived policy of automatically granting the extension of said rights in each case, irrespective of the state of the record therein.
Uniformity in the quality and quantity of motor transportation service throughout a newly established commercial zone, no doubt, is in the public interest in many instances and may well be served through the granting of reciprocity. However, uniformity should not be implemented on the basis of averments of equity or on supposition but, rather, should be predicated on an evidentiary showing that such uniformity will not only be in the interest of shippers and receivers of motor freight but will promote sound competition by and between the motor carriers involved.
For example, in those instances where commercial zone proceedings may be initiated by peripheral carriers with a view to extending their authority within the more monetarily lucrative boundaries of an adjacent municipality, or where a peripheral carrier, authorized to serve only one more point in an outlying area is authorized to serve an adjoining municipality and territories around that point, together with territories situated at some distance on the opposite side of the adjoining municipality, by virtue of the administrative creation of a commercial zone, it would appear that the desirability of uniformity of services in the public interest should be clearly manifested upon the record of that zone proceeding.
Conversely, should the record show that shippers or receivers of motor freight situated at a point or points in an outlying area are adequately served by the existing peripheral motor carrier, or carriers, the competitive soundness of authorizing a multitude of carriers, already certificated to serve the adjoining municipality or other more distantly situated territories, to likewise .serve such shipper or shippers at these outlying points, should be clearly evidenced upon the record to be in the public interest by reason of uniformity or for other substantive reasons.
*459Although intrastate motor carrier certificates can not be capitalized as a matter of law in Ohio, practicably many certificates possess a real and recognized monetary value, and, accordingly, may be transferred and sold for a substantial consideration. A recently acquired peripheral certificate may accrue, therefore, considerable value merely through the administrative stroke of a pen ordering the establishment of a commercial zone. On the other hand, a holder of a peripherally located certificated authority could be just as suddenly burdened with real financial adversities through unsound competition by the same or like administrative inclusion of that point or area presently served by it within a newly created or enlarged commercial zone.
It is axiomatic that some inequities will arise under most existing laws and administrative rulings. The Legislature has delegated to The' Public Utilities Commission, wide and sweeping powers in the creation of commercial zones, even to the extent of authorizing the Commission to establish zones without the formalities of hearings or the taking of evidence. See BEITER LINES v. P. U. C. O., supra. The exercise of this power, no doubt, is deemed to be administratively necessary; nonetheless, such power should be exercised by the Commission with discretion and considerate care because of its direct effect upon both the public and motor transportation interests involved. Hence, the Commission’s determinations in each commercial zone case should be predicated upon both the facts applicable to that zone proceeding and the relationship of those particular facts to this State’s transportation policy as set forth in above-cited §4921.03 R. C. This cannot be done, nor much less guaranteed, by a fixed policy of automatic reciprocity.
It is submitted, however, that the foregoing can be effectively accomplished by the Commission through adding to Rule No. 28 of Administrative Order No. 155 the amendatory qualification that reciprocal rights will generally be granted to all carriers affected by the establishment of a commercial zone except where the Commission is of the opinion the facts of a particular zone case evince that the public interest would not be served by such granting of reciprocity in whole or in part. It is believed that such an amendment to Rule No. 28, especially when related and considered with the Commission’s newly expressed views in these majority opinions calling for some showing of demands for motor transportation service by the shipping public to substantiate the establishing and geographical scope of each proposed commercial zone, will lay a sounder foundation for a general policy of granting reciprocal rights to carriers affected by the creation of commercial zones.
Thirdly, it is to be noted that aforesaid Rule No. 28 sets forth the following policy with respect to existing restrictions contained in the certificates of carriers affected by the establishment of commercial zones, to-wit:
“No restrictions of any kind shall be imposed upon the authority of carriers located in a commercial zone to serve that zone other than those restrictions and limitations already contained in their specific certificates. No restrictions contained in existing certificates shall be *460removed or changed by virtue of the establishment of a commercial zone.”
Decided August 27, 1957.Should these quoted provisions be literally construed and applied to the Niles Commercial Zone Matter, Case No. 26,094, one of the three proceedings here involved, the existing certificates of the peripheral motor carriers in that case which expressly restrict those carriers from serving the City of Niles, except for shipments from or to the City of Warren, would preclude the granting to those peripheral carriers of reciprocal rights to serve the municipality of Niles.
The Commission, of course, intended the above quoted provision to apply only to commodity restrictions, otherwise said provisions would be in direct contravention of the Commission’s fixed policy of automatic reciprocity.
It is respectfully recommended, therefore, that the Commission consider the feasibility of amending these particular provisions of Rule No. 28 so as to make them clearly applicable only to commodity restrictions.
Fourthly, concurrence should be expressed in the conclusion of the majority’s opinions that the Commission possesses statutory authority to grant reciprocity or reciprocal rights to all motor carriers affected by the establishment or enlargement of commercial zones.
However, in addition to the construction of the majority’s opinions that such authority is set forth expressly' in the enabling statute, §4921.26 R. C., it would appear that such authority may well be implicitly encompassed within this State’s transportation policy as decreed by §4921.03 R. C., especially when that statute is read in pari materia with enabling §4921.26 R. C.
Thus, in conclusion, I concur in the' majority’s opinions in the three cases here in issue, subject to the explanatory review and qualifications above set forth.
Respectfully submitted,
Everett H. Krueger, Jr., .
Chairman
Entered in the Journal:
August 12, 1957
SUPPLEMENTAL ORDER
No. 26094.
The Commission after reviewing its order made and entered herein August 12, 1957, in the above entitled proceeding, finds that there is an error on page 7 of said order. Upon the Commission’s own motion and for the purpose of correcting said clerical error, it. is
ORDERED, That the order made and entered herein August 12, 1957, be, and hereby the same is, modified and amended by correcting the number, as shown in the order, of the Certificate held by a carrier authorized to serve the Niles, Ohio, Commercial Zone, the correct Certificate number being No. 1692-1 instead of No. 1092-1. It is, further
ORDERED, That the said order of August 12, 1957, in all other respects remains in full force and effect. It is, further
*461ORDERED, That a copy of this order be forthwith served upon all parties heretofore served with a copy of the order made and entered August 12, 1957.
THE PUBLIC UTILITIES COMMISSION OF OHIO
Entered in the Journal
August 27, 1957
A true copy:
James L. Fullin, Jr., Ass’t. Secretary
Everett H. Krueger, Jr., Chairman
Ralph A. Winter
Edward J. Kenealy
Commissioners