Public Utilities Commission v. Cole's Exp.

• Decision Date: 21 January 1958
• Citation: 138 A.2d 466,153 Me. 487
• Parties: PUBLIC UTILITIES COMMISSION v. COLE'S EXPRESS. Re Motor Common Carrier Rate Increases and Decreases.
• Court: Maine Supreme Court

Page 466

138 A.2d 466

153 Me. 487

PUBLIC UTILITIES COMMISSION v. COLE'S EXPRESS.

Re Motor Common Carrier Rate Increases and Decreases.

Supreme Judicial Court of Maine.

Jan. 21, 1958.

Frank M. Libby, Peter Kyros, Augusta, Samuel W. Earnshaw, Washington, D. C., for appellants.

Watkins & Rea, Washington, D. C., Eaton, Peabody, Bradford & Veague, Bangor, Frank E. Southard, Augusta, for respondent.

Raymond E. Jensen, Portland, for intervenor.

Before WILLIAMSON, C. J., and WEBBER, BELIVEAU, TAPLEY, SULLIVAN, and DUBORD, JJ.

DUBORD, Justice.

This case comes to the Law Court on exceptions to certain rulings by the Public Utilities Commission.

By an order dated November 17, 1952, the Public Utilities Commission, on its own motion, ordered investigation into and concerning the reasonableness and lawfulness of class rates and minimum charges relating to transportation of freight and merchandise by common carriers by motor vehicle.

Following the issuance of this order, the Maine Motor Rate Bureau, a Maine corporation whose purpose is to make rate studies for motor carriers, prepare tariffs and act as agent for carriers in issuing the same, in cooperation with the Public Utilities Commission, engaged in a study of carrier operating costs.

As a result of that study the carriers throughout the state, including the respondent, Cole's Express, except as between points where it is in direct competition with the Bangor & Aroostook Railroad, filed, effective August 6, 1956, tariff schedules providing for increases and decreases in individual and joint motor common carrier freight rates and charges so as to produce uniform rates for all. As to all carriers other than Cole's Express, the rates as filed were permitted to go into effect. As to Cole's Express, although the rates were permitted to go into effect as to its operation between Portland and Bangor which are competitive with other common carriers, a hearing, upon motion of the Public Utilities Commission, was ordered as to motor common carrier class rates and minimum charges applicable from, to and between points in Aroostook County served by the respondent. To restate these facts: Following a study instituted by an order of the Public Utilities Commission, the carriers throughout the state filed uniform rates adjusted only to meet rail competition of the Bangor & Aroostook Railroad. These rates were permitted to go into effect as to all carriers as to the portion of the operation of Cole's Express, which involved no motor common carrier competition. These operations were treated on a different basis. Lower rates are prescribed by the Commission.

The respondent contends that on the record of this case, the findings of the Commission are not supported by any substantial evidence and that the applicable law under the legislative declaration of policy relating to discrimination has been erroneously applied by the Commission.

Maine Motor Rate Bureau was allowed to intervene.

Exceptions were filed by Maine Motor Rate Bureau and Cole's Express under the provisions of § 67, Chapter 44, R.S.1954; and pursuant to this section the Clerk of the Public Utilities Commission certified the exceptions.

The exceptions of Maine Motor Rate Bureau are five in number. Exception 1, is a general one which alleges that the findings of the Commission are erroneous in law because they are not supported by substantial evidence.

Exceptions 2, 3, 4, and 5, allege that in the absence of a showing by the evidence of a need for deviation from a general base for rates, the action of the Commission in selecting Cole's Express from all other carriers, and applying special rates where Cole's Express had no motor carrier competition, is a violation of the declaration of policy relating to discrimination, as set forth in § 19, Chapter 48, R.S.1954, which provides that discrimination in rates charged be eliminated.

The respondent, Cole's Express, attacks the decree of the Commission by means of 15 exceptions.

Exception 1, is a general one and alleges that the decree is not supported by substantial evidence.

Exception 2, charges that the decree of the Commission is based upon information not in the record and as a result the respondent has been denied a fair hearing in violation of Article 1, § 6 and § 21 of the Constitution of Maine and of the 14th Amendment of the Constitution of the United States.

In 15 subparagraphs to Exception 2, the respondent sets forth the matters which it says the Commission considered in arriving at its decision, and which matters were not introduced as evidence and made a part of the record in the case.

Exceptions 3, 4, 5, and 6, attacks specific findings by the Commission which the respondent says are based on purported information of the Commission extraneous to the record.

Exceptions 7, 8, 9, 10, 11, and 12, attack the decree of the Commission on the grounds that it is a violation of the discrimination provisions of § 19, Chapter 48, R.S.1954.

Exception 13, alleges that, under the circumstances of this case, the Commission was in error in applying to the respondent the rule of burden of proof, set forth in § 36, Chapter 44, R.S.1954.

Exception 14, again attacks the decree on the grounds of discrimination and alleges that the burden of proof required of the respondent was met when it filed rates based upon the average costs of a representative group of carriers, including the respondent.

Exception 15, again attacks the decree on the grounds of unfair discrimination.

The position taken by the Commission is that the respondent did not sustain its statutory burden of proof as to the justness or reasonableness of the proposed rate increases. The Commission says that the sole question before this Court is whether or not Cole's Express sustained its statutory burden of proof. It contends that if Cole's Express and Maine Motor Rate Bureau desired to challenge the facts stated in the decision, they could have done so, either by way of petition for review of the order, under § 70, Chapter 44, R.S.1954, or by petition in equity to review both the facts and the law under § 69, Chapter 44, R.S.1954, or both.

This is an over-simplification of the issues with which we do not agree. Section 70 of Chapter 44, R.S.1954, authorizes the Commission to rescind, alter or amend any of its orders upon notice to the public utility and after opportunity to be heard.

Section 69 of Chapter 44, R.S.1954, provides for an alternative method of review by this Court.

Prior to the enactment of § 69, the statutory method providing for exceptions in § 67, Chapter 44, R.S.1954, was the exclusive remedy for raising questions of law relative to decrees of the Public Utilities Commission. Casco Castle Co., Petitioner, 141 Me. 222, 42 A.2d 43.

The excepting parties are properly in this Court.

While we recognize that when rulings of the Public Utilities Commission are based upon its findings of fact, this Court has no right to sustain exceptions on questions of fact, if there be any evidence to sustain the findings, yet it is a well recognized principle of law that whether on the record, any factual finding underlying order and requirement, is warranted by law, is a question of law, reviewable on exceptions. Public Utilities Commission v. Utterstrom Brothers, Inc., 136 Me. 263, 8 A.2d 207.

'When the Commission decides a case before it without evidence, or on inadmissible evidence, or improperly interprets the evidence before it, then the question becomes one of law.' Central Maine Power Co. v. Public Utilities Commission, 150 Me. 257, 261, 109 A.2d 512, 514, New England Tel. & Tel. Co. v. Public Utilities Commission, 148 Me. 374, 377, 94 A.2d 801, Chapman, Re: Petition to Amend, 151 Me. 68, 71, 116 A.2d 130.

As it is clear that the decree of the Commission is based upon information not in the record, and upon assumptions based on such information, as complained of in the exceptions of Cole's Express, 2, 3, 4, 5, and 6, the first question for determination is whether or not the matters complained of were properly considered by the Commission under the doctrine of judicial notice.

'The matter of which a court will take judicial notice must be a subject of common and general knowledge. In other words, judicial knowledge of facts is measured by general knowledge of the same facts. A fact is said to be generally recognized or known when its existence or operation is accepted by the public without qualification or contention. The test is whether sufficient notoriety attaches to the fact involved as to make it proper to assume its existence without proof. The fact that a belief is not universal, however, is not controlling, for there is scarcely any belief that is accepted by everyone. Those matters familiarly known to the majority of mankind or to those persons familiar with the particular matter in question are properly within the concept of judicial notice. Judicial knowledge is continually extended to keep pace with the advance of art, science, and general knowledge.' 20 Am.Jur. 49, § 18, Evidence.

'Judicial notice in any particular case is not determined or limited by the actual knowledge of the individual judge or court. There is a basic distinction between judicial notice and judicial knowledge. In those instances where a judge is personally conversant with a fact which is judicially cognizable, proof thereof is not required. It is not essential, however, that matters of judicial cognizance be actually known to the judge. If they are proper subjects of judicial knowledge, the judge may inform himself in any way which may seem best to his discretion and act accordingly. On the other hand, facts which are not judicially cognizable must be proved, even though known to the judge or to the court as an individual. In other words, the individual and extrajudicial knowledge on the part of a judge will not dispense with proof of facts not judicially cognizable, and cannot be resorted to...