Bradley applied to the Public Utilities Commission of Ohio for a certificate of public convenience and necessity to operate by motor as a common carrier of property over State Route No. 20, extending from Cleveland, Ohio, to the Ohio-Michigan line, with Flint, Mich., as final destination. The New York Central Railroad and the Pennsylvania Railroad opposing, moved that the application be dismissed on the ground of the present congested condition of that highway. Upon a full hearing, the commission found 'that said State Route No. 20, at this time, is so badly congested by established motor vehicle operations, that the addition of the applicant's proposed service would create and maintain an excessive and undue hazard to the safety and security of the travelling public, and the property upon such highway.' It therefore ordered: 'That in the interest of preserving the public welfare, the application be, and hereby is, denied.'
In a petition for a rehearing, which was also denied, Bradley urged, among other things, that denial of the application for the certificate on the ground stated violated rights guaranteed to the applicant by the commerce clause of the Federal Constitution and the equality clause of the Fourteenth Amendment. The same claims were asserted in a petition in error to the Supreme Court of the state; were there denied (125 Ohio St. 381, 181 N.E. 668) upon the authority of Motor Transport Co. v. Public Utilities Company, 125 Ohio St. 374, 181 N.E. 665; and are renewed here upon this appeal. We are of opinion that the claims are unfounded.
First. It is contended that the order of the commission is void because it excludes Bradley from interstate commerce. The order does not in terms exclude him from operating interstate. The denial of the certificate excludes him merely from Route 20. In specifying the route, Bradley complied with the statutory requirement that an applicant for a certificate shall set forth 'the complete route' over which he desires to operate. Ohio General Code, § 614-90(c). But the statute confers upon an applicant the right to amend his application before or after hearing or action by the commission. Section 614-91. And it authorizes him, after the certificate is refused, to 'file a new application or supplement any former application for the purpose of changing' the route. Section 614-93. No amendment of the application was made or new application filed. For aught that appears, some alternate or amended route was available on which there was no congestion. If no other feasible route existed and that fact was deemed relevant, the duty to prove it rested upon the applicant. It was not incumbent upon the commission to offer a certificate over an alternate route.
Second. It is contended that an order denying to a common carrier by motor a certificate to engage in interstate transportation necessarily violates the Commerce Clause. The argument is that under the rule declared in Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623, 38 A.L.R. 286, and Bush & Sons Co. v. Maloy, 267 U.S. 317, 45 S.Ct. 326, 327, 69 L.Ed. 627, an interstate carrier is entitled to a certificate as of right; and that hence the reason for the commission's refusal and its purpose are immaterial. In those cases, safety was doubtless promoted when the certificate was denied, because intensification of traffic was thereby prevented. See Stephenson v. Binford, 287 U.S. 251, 269-272, 53 S.Ct. 181, 77 L.Ed. 288. But there promotion of safety was merely an incident of the denial. Its purpose was to prevent competition deemed undesirable. The test employed was the adequacy of existing transportation facilities; and since the transportation in question was interstate, denial of the certificate invaded the province of Congress. In the case at bar, the purpose of the denial was to promote safety; and the test employed was congestion of the highway. The effect of the denial upon interstate commerce was merely an incident.