Public Utilities Commission’s decision not supported by record evidence
How later courts described this case
- Public Utilities Commission’s decision not supported by record evidence
- reversing and remanding for rehearing
Written by the judges who cited it.
The opinion
Douglas, J.,
dissenting. I respectfully dissent. R.C. 4907.47 requires the PUCO to consider specific factors with regard to each individual public railroad-highway grade crossing when the commission is determining whether the installation of protective devices should be ordered. R.C. 4907.47 also gives the commission broad discretion in determining how the costs of installing and maintaining crossing protective devices should be apportioned.
In the case before us, the commission studied the crossing in question and found,- among other pertinent facts, that vehicular use of the crossing is relatively light while an average of twenty-one trains, traveling up to fifty miles per hour, pass the crossing each day. These facts, combined with the broad discretionary authority vested in the commission and a review of the record, lead me to the conclusion that the commission did not abuse its discretion in making the apportionment it did in this case.
In Columbus v. Pub. Util Comm. (1979), 58 Ohio St. 2d 103, 104 , 12 O.O. 3d 112, 113, 388 N.E. 2d 1237, 1238 , we stated:
“Under the ‘unlawful or unreasonable’ standard specified in R.C. 4903.13, this court will not reverse or modify an opinion and order of the Public Utilities Commission where the record contains sufficient probative evidence to show that the commission’s determination is not manifestly against the weight of the evidence and is not so clearly unsupported by the record as to show misapprehension, mistake or willful disregard of duty.”
We have consistently adhered to this view. See In re Application of G & B Anderson, Inc. (1988), 38 Ohio St. 3d 96 , 526 N.E. 2d 792 ; MCI Telecommunications Corp. v. Pub. Util. Comm, (1987), 32 Ohio St. 3d 306 , 513 N.E. 2d 337 ; Dayton Power & Light Co. v. Pub. Util. Comm. (1983), 4 Ohio St. 3d 91 , 4 OBR 341, 447 N.E. 2d 733 ; Consumers’ Counsel v. Pub. Util. Comm. (1981), 67 Ohio St. 2d 153 , 21 O.O. 3d 96, 423 N.E. 2d 820 ; Ohio Utilities Co. v. Pub. Util. Comm. (1979), 58 Ohio St. 2d 153 , 12 O.O. 3d 167, 389 N.E. 2d 483 ; General Motors Corp. v. Pub. Util. Comm. (1976), 47 Ohio St. 2d 58 , 1 O.O. 3d 35, 351 N.E. 2d 183 .
There is no showing by the majority that the commission abused its discretion and/or that the commission’s decision is against the weight of the evidence. What the majority does, simply, is substitute its judgment for that of the commission.
Since I believe that this is an improper exercise of our authority, I respectfully dissent.
Holmes and Resnick, JJ., concur in the foregoing dissenting opinion.