the complaints were filed with the Public Utilities Commission and the reasonableness and lawfulness of the order of the Commission revoking his certificate. fore respectfully requests the issuance to it of a certificate of public convenience and necessity in accordance with section 614-87, G. C.," which affidavit the Public Utilities Commission found to be true, and issued a [1] That it was the intention of the Legiscertificate, not to the partnership, but to lature, in the enactment of the FreemanCarl J. Westhoven, to operate over the route Collister Act, 110 Ohio Laws, 211, to make described in the affidavit. Thereafter the the certificate of convenience and necessity proceedings from which error is prosecuted of the Public Utilities Commission personal here were begun by the filing of separate to the "persons or persons, firm or firms, complaints by Albert E. Stewart, Louis C. co-partnership, or voluntary association, joint Kretz, and Florence Westhoven. Louis C. stock association, company or corporation," Kretz and Florence Westhoven complain that seems apparent from the various provisions the issuing of the certificate to Carl J. West- of the act, not only by reason of the fact hoven was obtained by him upon a false that no provision is made therein for the affidavit, and was a fraud upon the rights assignment or transfer of the certificate, of the other copartners. The complaint of but by the various provisions requiring perAlbert E. Stewart was to the effect that Carl sons who operate or seek to operate in a J. Westhoven "is not now and has not been representative capacity to first secure such the owner of any motor vehicle whatsoever, a certificate from the Public Utilities Comnor is he the operator, lessee, manager, or mission. By section 614-84 "lessees, truscontroller of the same; that he discontinued tees, receivers or trustees appointed by any operating as a motor transportation com- court whatsoever," are made motor transpany on or about the 10th day of March, 1924; and that he has failed for five months last past to so operate without the consent or approval of your Commission." portation companies. By section 614-85 "lessees, trustees, receivers or trustees appointed by any court whatsoever" are prohibited from operating as motor transportation companies except in accordance with the provisions of the act, among the provisions of the act being that no motor transportation company shall operate without a certificate of public convenience and necessity. Section 614-88 provides that "lessees, trustees, receivers or trustees appointed by any The order of the Commission recites: "The Commission, being fully advised in the premises, finds from the testimony offered by the witnesses and the admission of Carl J. Westhoven: That on April 28, 1923, the date upon which the Collister-Freeman Bill was filed in the office of the secretary of state, a partnership, consisting of Carl J. Westhoven, Florence Westhoven, Luella Westhoven, and court" shall not operate without such cerLouis C. Kretz, was operating a motor trans-tificate, and section 614-87, relative to revoportation company, carrying passengers as a cation of such certificate, provides for nocommon carrier, upon and over a regular route, tice "to the grantee of any certificate," but whereof the city of Toledo and the city of Na- no provision is made there, or elsewhere in poleon, Ohio, were the termini; that neither Carl J. Westhoven, as an individual, nor the the act, for notice to any person other than partnership consisting of Carl J. Westhoven the grantee of the certificate, indicating that and Lawrence Westhoven, were operating a it was within the contemplation of the Legmotor transportation company, carrying pas-islature that there would be no person whose sengers as a common carrier, between said rights would be affected by the revocation of termini on said April 28, 1923; that the state- the certificate other than the grantee in such ments contained in the affidavit, heretofore filed certificate. with this Commission by the said Carl J. Westhoven, to the effect that the partnership consisting of Carl J. Westhoven and Lawrence Westhoven were operating a motor transportation company, carrying passengers as a common carrier between said termini on April 28, 1923, are untrue and that certificate of public convenience and necessity No. 101, which was issued upon the said statements set forth in the said affidavit of the said Carl J. Westhoven, has been obtained by false statements and upon misrepresentations, and, the Commission having been misled by the said affidavit of the said Carl J. Westhoven, hereby further finds that said certificate of public convenience and necessity No. 101 should be and the same hereby is revoked, canceled, annulled, and held for naught." In the decision of this case we do not deem it necessary to consider any of the questions raised or attempted to be raised other than the status of Carl J. Westhoven at the time The Public Utilities Commission, therefore, was justified in this case in holding that the certificate to Carl J. Westhoven was not a certificate to the partnership of Carl J. Westhoven, Florence Westhoven, Luella Westhoven, and Louis C. Kretz, and that on April 28, 1923, Carl J. Westhoven, under the admitted facts, was not operating either as an individual or as a partnership composed of Carl J. Westhoven and Lawrence Westhoven. The certificate, therefore, whether obtained by misrepresentation or by mistake, was not a certificate to the party or parties entitled to such certificate, under the facts actually existing, and the order revoking such certificate was therefore neither unreasonable nor unlawful. [2] The provision of section 614-87, relating to motor transportation companies (147 N.E.) actually in operation upon the date of the filing of the act in the office of the secretary of state (April 28, 1923), gives to such motor transportation companies no rights different from the rights of holders of certificates who were not so operating, except in the manner of obtaining such certificate. It necessarily follows that the right to a certificate under the prior operation clause is no more the subject of succession or transfer than the certificate itself would be. Indeed, Error to Public Utilities Commission. were the Public Utilities Commission to ex cept partnerships from the general rule, and allow the operations of the partnership to inure to the sole benefit of an individual member of the partnership, or the operations of an individual, as such, to inure to the benefit of a partnership of which he may become a part, then the rule of nontransferability of the certificate could be circumvented in every case by the process of the holder of the certificate taking the intended purchaser into partnership and then himself withdrawing from the partnership. The rule fairly administered can work no injustice, since the Public Utilities Commission has the power to grant a certificate of public convenience and necessity upon ap plication in all proper cases, even though it refuse the certificate upon affidavit. The order of the Public Utilities Commis sion is therefore affirmed. Order affirmed. MARSHALL, C. J., and JONES, MATTHIAS, DAY, ALLEN, and KINKADE, JJ., con cur. ESTABROOK, Rec'r, v. PUBLIC UTILITIES (Supreme Court of Ohio. April 21, 1925.) (Syllabus by the Court.) Receivers 67-Certificate of public convenience and necessity is not asset with which receiver of motor transportation company can be charged, or which he may convert into asset; right to certificate of public convenience and necessity is not asset of receiver of motor transportation company. A certificate of public convenience and necessity is not an asset with which a receiver of a motor transportation company can be charged, or which he may sell and convert into an asset, nor is the right to a certificate of public convenience and necessity upon affidavit under section 614-87, General Code, an asset of a receiver of a motor transportation company, which but for the appointment of the receiver would have been entitled to such a certificate, nor can the same be sold or transferred and converted into an asset. Proceeding before the Public Utilities Commission of Ohio by Hubert A. Estabrook, as receiver of the Buckeye Transportation Company, to secure certificate of public convenience and necessity to operate bus line. Certificate was refused, and applicant brings error. Order refusing certificate affirmed.[By Editorial Staff.] Frank W. Geiger and Aaron J. Halloran, both of Springfield, for plaintiff in error. Estabrook Finn & McKee, of Dayton, and C. C. Crabbe, Atty. Gen., and John W. Bricker, Asst. Atty. Gen., for defendant in error. ROBINSON, J. On and prior to March 7, 1923, the Buckeye Transportation Company, an Ohio corporation, was engaged as a common carrier transporting persons by means of motor busses from Dayton, Ohio, to Hamilton, Ohio, and on the 7th day of March, 1923, a receiver was appointed for such corporation by the court of common pleas of Montgomery county, Ohio, and by order of the court the business of transporting persons by busses over the public highway between those points was continued until the 20th day of June, 1923. On July 27, 1923, the physical assets of the corporation, including the busses used in the transportation of persons, were sold by order of the court. On January 25, 1924, the receiver filed his final account, was discharged, and his bondsmen and himself released. On April 7, 1924, upon application, Hubert A. Estabrook was appointed receiver of the Buckeye Transportation Company for the purpose of securing a certificate of public convenience and necessity to operate a bus line over the same route and between the same termini. On April 11, 1924, such receiver filed an affidavit with the Public Utilities Commission of Ohio, together with the necessary ex-hibits for the purpose of obtaining a certificate of public convenience and necessity; it being the position of the receiver that as such he was entitled to such certificate by reason of the operations of the Buckeye Transportation Company, and that such certificate would be an asset of the corporation, which might be converted into money. On August 7, 1924, the Public Utilities Commission made a finding of facts in substance as above set forth, and refused to grant such certificate. The question here presented has been discussed in Case No. 18807, Westhoven v. Pub. Util. Comm., 111 Ohio St. —, 147 N. E. 759, this day decided, and the decision in that case is determinative of this case. The certificate of public convenience and necessity is not an asset which may be sold For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes by a receiver. Indeed, the Freeman-Collister Act, in section 614-85, General Code (110 O. L. 214), makes operation by the receiver unlawful unless a certificate be obtained by him from the Public Utilities Commission. It has been the theory of the Public Utilities Commission that the motor transportation act was enacted for the purpose of promoting the public convenience and necessity, and not for the purpose of creating a property right in any particular route in the recipient of any such certificate; that whatever personal advantage inures to such recipient is an incident to the carrying out of the purpose of serving the public convenience and necessity, but is not an object of the act; that the certificate is personal in character, and does not pass by assignment, succession, descent, or by any other process, from the recipient to any one else. With the view of the Commission in that respect this court is in entire accord. A receiver without equipment or the means of securing equipment is not entitled to a certificate of convenience and necessity either upon affidavit or upon application, and, were he to secure such certificate, he could not transfer it, and therefore it could not become an asset of the corporation of which he is the receiver. C. M. Addison, of Columbus, and Harmon, Colston, Goldsmith & Hoadly, of Cincinnati, for plaintiff in error. C. C. Crabbe, Atty. Gen., John W. Bricker, Asst. Atty. Gen., Thorne J. Moffett, of Cleve land, and Carl H. Henkel, of Mansfield, for defendant in error. ROBINSON, J. On July 18, 1924, the Public Utilities Commission made a finding of fact and order in this case, which is as follows: "The Red Ball Transit Company filed an affidavit with the Commission stating that it was a motor transportation company and that on April 28, 1923, it was operating in good faith as such motor transportation company over no Commission, on February 14, 1924, under secfixed routes. No protest having been filed, the tion 614-87, made an order granting a certificate of convenience and necessity to such company, the company was notified to pay the lawful fees and to file with the Commission the proper tariffs and schedules and insurance policies. "On April 11, 1924, the Commission served notice on the company that it must show cause granted should not be canceled for failure on within five days why the certificate heretofore the part of the company to pay the proper tax and for failure to file with the Commission proper tariffs, schedules, and insurance poli The order of the Public Utilities Commis- cies. sion is affirmed. Order affirmed. MARSHALL, C. J., and JONES, MATTHIAS, DAY, ALLEN, and KINKADE, JJ., concur. PUBLIC RED BALL TRANSIT CO. V. (Supreme Court of Ohio. April 28, 1925.) (Syllabus by the Court.) Carriers 8-Individual's operation of motor transportation line does not inure to benefit of corporation organized by him so as to entitle him to certificate of convenience and necessity on affidavit. Operation prior to April 28, 1923, by an Individual does not inure to the benefit of a corporation thereafter, or at that time, or ganized by him, so as to entitle it to a certificate of convenience and necessity, as a matter of right upon affidavit. Error to Public Utilities Commission. Proceeding before the Public Utilities Commission of Ohio by the Red Ball Transit Company. To review an order revoking certificate of convenience and necessity, the Transit Company brings error. Affirmed. [By Editorial Staff.] "Whereupon a hearing was held by the Commission on April 30, 1924, and during the hearing a charge was made that the allegations of the company in its original affidavit were untrue, in that the company was not operating on | April 28, 1923, and that the company did not operate a motor transportation company. After the conclusion of the hearing on April 30th, the company asked for another hearing when it would be given an opportunity to present further evidence. The request of the company was granted, and a further hearing was held on the 19th day of May, 1924. "The evidence produced before the Commission disclosed the fact that an individual, W. B. Hiner, conducted a business known as the Red Ball Transit, which consisted of selling trucks to individuals and contracting with individuals for the transportation of household goods and that the business was not confined alone to the other commodities from one place to another; state of Ohio, but extended into other states; that said Hiner would sell a certain type of truck to an individual on time, and then contract with that individual to haul the goods which said Hiner had agreed to transport from place to place; that the individual who purchased the trucks operated the same, paid all expenses incident to their operation, and received a stipulated amount from Hiner for moving the goods; that Hiner did not move any goods in any trucks owned by him; that on or about (and the testimony is confusing in this respect) April 28, 1924, Hiner and others forming it the Red Ball Transit Company, to coned a corporation in the state of Indiana, callduct the same business that had been carried on by the said Hiner; and that the said Hiner transferred to said company all the assets of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) ed to company was obtained through misrepresentation and false statements, and should therefore be revoked. "It is therefore ordered that the certificate of public convenience and necessity to operate a motor transportation company, transporting property as a common carrier, granted to the Red Ball Transit Company, a corporation, by the order of this Commission, made and entered as of date February 14th, 1924, be, and hereby the said certificate is revoked, canceled, and held for naught." the business which he had been carrying on the certificate heretofore ordered to be grantas an individual, and that the said Hiner was the principal stockholder in the corporation. "The evidence further disclosed the fact that the corporation did not comply with the laws of Ohio regarding a foreign corporation doing business in Ohio until some time in June, 1923. "The questions before the Commission are: Was the Red Ball Transit Company a corporation operating a motor transportation business as defined in the Collister-Freeman Act, and was it so actually operating in good faith upon the date of filing of the Collister-Freeman Act in the office of the secretary of state, to wit, April 28, 1923, so as to entitle it to a certificate of public convenience and necessity upon an affidavit as provided for in the last sentence of section 614-87 of the General Code? The question of whether the Red Ball Transit Company, a corporation, should be granted a certificate on an application is not now before the Commission, neither are the questions of whether or not Hiner, an individual, is entitled to a certificate or whether or not the truck owners who were doing the actual hauling are entitled to a certificate, for such application In the case of Westhoven v. Public Util and affidavits have not been filed with the Com-ities Commission, 112 Ohio St. mission. "Section 614-84 of the General Code defines a motor transportation company as 'owning, controlling, operating, or managing any motor propelled vehicle not usually operated on or over rails, used in the business of transportation of persons or property, or both, as a common carrier for compensation over any public highway in this state.' The Commission finds from the evidence that the Red Ball Transit Company was not conducting nor operating such a business; that it did not own, control, operate, or manage any motor propelled vehiele; that it simply entered into a contract with a shipper for the transfer of his goods from one place to another and then hired some one else to do the actual transferring; that these individual owners of the trucks were the ones who owned, controlled, operated, and managed the trucks; that the transit company was simply a broker or forwarder, and did not own, control, operate, or manage the trucks any more than it would own, control, operate, or manage a railroad, if instead of hiring these truckmen to transfer the goods it had shipped the goods over a railroad. "The Commission further finds that the Red Ball Transit Company, a corporation, was not actually operating in good faith on April 28, 1923, in the state of Ohio, inasmuch as it is a foreign corporation, and did not comply with the laws of the state of Ohio respecting foreign corporations doing business in Ohio until June, 1923. "For the reasons set out above the Commission finds that the allegations contained in the affidavit filed by the company are untrue; that Error is prosecuted here by the Red Ball Transit Company to reverse that order. The question of the applicability of the Freeman-Collister Act to the operations of the plaintiff in error, and the question of the right of the state to prohibit the interstate activities of plaintiff in error, are attempted to be raised, an answer to neither of which is necessary, as we view it, to the determination of this case. -1 147 N. E. 759, this court held that the operation of a partnership prior to the 28th day of April, 1923, cannot inure to the benefit of the individual members of the partnership, so as to entitle them, as individuals, to a certificate of convenience and necessity, as a matter of right, upon the filing of an affidavit; that the operation of an individual prior to that date cannot inure to the benefit of the partnership, as such; and that the certificate of convenience and necessity is personal and not transferable. By analogy the operation of an individual, as such, prior to the 28th day of April, 1923, cannot inure to the benefit of a corporation so as to entitle it to a certificate, as a matter of right, even though the stock of the corporation be substantially owned by the person who had theretofore operated as an indi vidual. also such witnesses as state indicates it re Edwin G. BECKER, Receiver, v. PUBLIC lies on. (No. 18820.) (Supreme Court of Ohio. April 21, 1925.) Error to Public Utilities Commission. Samuel I. Lipp and John A. Scanlon, both of Cincinnati, for plaintiff in error. C. C. Crabbe, Atty. Gen., and John W. Bricker, Asst. Atty. Gen., for defendant in error. PER CURIAM. The question involved in this case is one of fact. One Edward A. Carley filed his affidavit with the Public Utilities Com mission, in accordance with section 614-87, General Code (110 O. L. 215), in which he stated that on April 28, 1923, he was operating in good faith a bus line over the route set forth in the affidavit. A protest was filed by the plaintiff in error. Upon hearing, the Public Utilities Commission found that the statements in the affidavit of Carley were true, and awarded him a certificate of public convenience and necessity. We have examined the record and find nothing therein which, taken in connection with the explanation of Carley, is inconsistent with the truth of the facts alleged in his affidavit. The order of the commission is affirmed. 4. Habeas corpus 113(12) On appeals from Judgment denying bail, Supreme Court will weigh evidence and pass on it as trial court. On appeals from judgment denying bail, in proceedings under Burns' Ann. St. 1914, § 2025, Supreme Court will weigh evidence and pass on it as trial court. Appeal from Circuit Court, Perry County; Fred A. Heuring, Judge. Habeas corpus proceeding by Albert McAdams and Matilda Sanders to obtain their release on bail, pending prosecution for murder. From a judgment denying bail, remanding petitioners to custody, they appeal. Affirmed. Cody & Corbin, of Tell City, for appellants. U. S. Lesh, Atty. Gen., and Connor D. Ross, First Deputy Atty. Gen., for the State. WILLOUGHBY, J. The appellants, Albert McAdams and Matilda Sanders, were in jail in Perry county, Indiana, under a charge of murder in the first degree, preferred against them jointly by the grand jury of said Perry county. They filed their verified MARSHALL, C. J., and JONES, MAT-petition under section 2025, Burns' 1914, to MCADAMS et al. v. STATE. (No. 24749.) (Supreme Court of Indiana. May 14, 1925.) 1. Appeal and error 760 (2)-Objections to admission of testimony deemed waived. be let to bail. A writ of habeas corpus was duly issued under said petition, and the sheriff made his return showing service of such writ and bringing the said petitioners, Albert McAdams and Matilda Sanders, before the Perry circuit court, and the judge thereof in vacation, on the 7th day of July, 1924; whereupon on said day a hearing was had on said petition, and the court rendered judg ment denying petitioners the right to bail and remanding them to the custody of the sheriff to be confined in the Perry county jail to await trial. Objections to admission of testimony must be deemed waived, where appellant's brief does not point out any place in record where such On the same day of the hearing and judgalleged errors may be found, and does not statement the petitioners filed their motion for a what objections were made. 2. Bail 49-On application for bail by one charged with murder, indictment stands with presumptions in favor of its truth until its force is broken by accused. Under Bill of Rights, § 17, Burns' Ann. St. 1914, § 62, denying bail to one charged with murder or treason when proof is evident or presumption strong, on application for bail under Burns' Ann. St. 1914, § 2025, by one charged with murder, indictment stands with all its presumptions in favor of its truth until its force is broken by showing made by accused that grand jury acted on insufficient evidence. 3. Bail 49-Evidence required of applicant for bail seeking to overcome presumption of truth of indictment stated. Applicant for bail under Burns' Ann. St. 1914, § 2025, seeking to overcome presumption of truth of indictment, must introduce the evidence of witnesses indicated by indictment, and new trial, which, being overruled, appellants appealed, and the ruling of said court in overruling said motion is assigned as error. [1] The only question presented by appellant's brief is the sufficiency of the evidence to sustain the finding of the court. Appellants complain that the court erred in admitting certain testimony, but appellants do not point out any place in their brief where these alleged errors may be found in the record. The brief fails to state what objection or objections, if any, were made to such testimony. Such questions are therefore waived. Gray v. McLaughlin, 191 Ind. 190, 131 N. E. 518; Dampier v. State (Ind. Sup.) 144 N. E. 241; McCrocklin v. State, 189 Ind. 254, 126 N. E. 678. Did the evidence sustain the finding of the trial court? Section 17 of the Bill of Rights, Burns' 1914, § 62, provides that: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |