two thousand eighty- eight vehicles and ten trains per day
How later courts described this case
- two thousand eighty- eight vehicles and ten trains per day
- one thousand thirty vehicles and ten trains per weekday
Written by the judges who cited it.
Distinguished
Distinguished by Ohio Edison Co. v. Public Utilities Commission, 63 Ohio St. 3d 555 (1992)
However, Columbus is distinguishable from this case because, here, the company attempted to supplement its application with additional property after the commission had issued its Staff Report of Investigation.
The opinion
Locher, J.,
dissenting. I dissent from the majority opinion in the instant cause because the utility company has failed to meet the requisite burden of proof pursuant to R. C. 4909.89 and 4909.15. It is axiomatic that a utility has the burden of proof that the property which is sought to be included in its statutory rate base is used and useful. Mt. Vernon Telephone Corp. v. Pub. Util. Comm. (1955), 163 Ohio St. 381 .
In the cause sub judice, the majority opinion admits that the crux of the commission’s adoption of the allocation formula was based upon a ££non-verifiable assumption” that the relationship between the average and peak demands of the city and non-city residents is the same.
The staff, in its Report of Investigation, recognized that, if the load factor for residential, small and medium general service customers is reasonably equal, then the allocation to Columbus would be acceptable.
The commission mechanically adopted this !£non-verifiable load factor assumption,” even though individual demand meters could have been used to determine the load factors. Demand meters were not used for the purpose of sampling Columbus customers vis-a-vis other Columbus & Southern Ohio Electric Company (C&SOE) customers. Thus, by the use of demand meters, this ££non-verifiable assumption” could easily have been verified.
*107 It is well known, and should be especially applicable to monopolies which have a fiduciary duty to the public, that the applicant has the burden of proving all the material allegations in the complaint. In Ohio Motor Freight Tariff Committee, Inc., v. Pub. Util. Comm. (1959), 169 Ohio St. 172 , 177, this court noted the commission’s report, which, in pertinent part, stated:
“* * * [I]t is elementary that any party complainant before this commission assumes the duty and obligation of proving all of the material, allegations contained in his original complaint. * * *”
C&SOE had the burden of proof to show that the allocation methodology and resulting valuation were reasonable, but it failed to produce any credible evidence supportive of the method of valuation. The lack of specific cost studies and direct assignments by C&SOE make the reasonableness of the proposed allocation methodology questionable.
In Mt. Vernon, supra, the utility could not prove the valuation of its property because of the lack of reliable depreciation information, and, accordingly, the commission dismissed the rate increase application. This court, at page 389, noted that:
* * An order by the commission under such circumstances would have required mere conjecture on its part
Applying the Mt. Vernon, analysis to the instant cause, the commission should have dismissed the complaint, because it had but a “mere conjecture” as to the reasonableness of the C&SOE load factor, which was the heart of the application for a rate increase.
P. Browu, J., concurs in the foregoing dissenting opinion.