Ashworth Transfer Co. v. Public Service Commission, 7968

• Decision Date: 26 March 1954
• Docket Number: No. 7968,7968
• Citation: 268 P.2d 990,2 Utah 2d 23
• Parties: d 23 ASHWORTH TRANSFER CO. et al. v. PUBLIC SERVICE COMMISSION et al.
• Court: Utah Supreme Court

Page 990

268 P.2d 990

2 Utah 2d 23

ASHWORTH TRANSFER CO. et al. v.PUBLIC SERVICE COMMISSION et al.

No. 7968.

Supreme Court of Utah.

March 26, 1954.

Pugsley, Hayes & Rampton, Salt Lake City, for plaintiff.

E. R. Callister, Atty. Gen., Peter M. Lowe, Asst. Atty. Gen., Lee Neff Taylor, A. Pratt Kesler, Salt Lake City, for defendant.

McDONOUGH, Justice.

The Public Service Commission of Utah, after a hearing upon an application by defendant, Harry L. Young & Sons, Incorporated, ordered that a certificate of convenience and necessity be issued to defendant to operate as a common carrier by motor vehicle on irregular routes throughout the State for the transportation of:

'Commodities which by reason of their size, shape, weight, origin, or destination require equipment or service of a character not regularly furnished by regular common carriers at the regular line rate which commodities shall be such as, but shall not be limited to the following: gasoline tanks, boilers, pipes, and tubing to be used in connection therewith; cable, bridges, or structural iron or steel; concrete mixers, culvers, explosives, grading and road equipment, harvesters, and thrashers; locomotives, machinery and dragline outfits; piling pipe, pole line construction material; telephone or telegraph poles; rails, smokestacks; and heavy timbers; machinery, materials, supplies and equipment, incidental to, or used in the construction, development, operation and maintenance of facilities for the discovery, development, and production of natural gas and petroleum.

'Commodities in connection with the transporting of which is rendered a special service in preparing such commodities for shipment or setting up after delivery or otherwise rendering a needed service not a part of the ordinary act of transporting and not now regularly furnished by other regular common carriers for the regular line rates.

'All parts, supplies, equipment and appurtenances are a part of the same movement.'

Protestants before the Commission who participated in the hearing included Ashworth Transfer Company and Salt Lake Transfer Company, common carriers holding prior certificates which give authority to transport, inter alia, the commodities described above, and these carriers brought the matter before us by Writ of Review.

The questions presented to us for review may be consolidated as follows: (1) May the Commission grant a certificate of convenience and necessity for a carrier to transport a large group of specified commodities when evidence of the need was not produced on each of the various items?(2) May the Commission consolidate the evidence of hearings on separate applications for the same or similar authority and base its separate orders upon considerations of all hearings?(3) Was there substantial evidence to support the findings and justify the order of the PSCU?

(1) It is conceded by the applicant that he did not produce evidence by direct testimony as to a public need for a common carrier to transport each of the items enumerated in PSCU's order.Indeed, even if he had secured witnesses on the specific items, plaintiffs' complaint might still subsist, for it would be impossible to produce evidence of a need for transportation of all of the items which might be encompassed within the general phrases of the authority, viz., 'Commodities which * * * require equipment or service of a character not regularly furnished,''shall not be limited to,''Commodities in connection with the transporting of which is rendered a special service' etc.

The Interstate Commerce Commission was recently confronted with the problem of descriptions to be used in the issuance of limited-commodity certificates in Ex Parte No. MC-45, decided October 20, 1952, and ruled that whereas in some types of hauling a complete listing of the commodities authorized is necessary, in other instances, a grouping under a generic or other general heading is more practical.The ICC recognized the problem of so restricting the carrier by the authority granted as to curtail its usefulness to prospective shippers and creating a situation where the shipper would have to employ several carriers to transport a shipment of a single truck load; on the other hand, a broad grant of authority under a generic heading often leads to abuses through 'weird theories of interpretation and construction' to justify hauling commodities not contemplated by the grant.

In the present case, then, if the classification by the PSCU was a reasonable one, evidence of the need for and ability to perform hauling of the general category would be sufficient to justify the order of the commission.Examining the question with regard to heavy and bulky articles, the ICC, Ex Parte No. MC-45, supra, sheet 36, stated:

'The transporters of heavy and bulky articles are frequently referred to in the industry as heavy haulers and riggers, terminology which in large measure describes the service performed by them.* * * These carriers take the position that * * * there has been little, if any, difficulty interpreting their certificates.The commodities transported by this group of carriers generally are of such size or weight as to require special devices for their loading and unloading and the use of special equipment for their movement over the road.The commodities or articles do not follow any fixed pattern or fall into a generic classification or group as has been the case with some of those previously discussed.The heavy haulers and riggers transport and hold themselves out to transport, every kind of commodity the basic requirement of which is the use of special equipment or special handling.It may vary from a heavy piece of machinery to a huge girder.'

Under this view, and under the general acceptance and interpretation by the industry, the ICC adopted the description 'commodities which because of their size and weight require special equipment' for use under interstate certificates.It can readily be seen that the specific items set forth in the first paragraph of the PSCU's description fall into the category of 'Commodities which by reason of their size, shape, weight, origin, or destination require equipment or service of a character not regularly furnished by regular common carriers.'

The only commodity listed not descriptive of the general category is 'explosives.'Although this item is perhaps somewhat inconsistently placed in the order of the list, it would be an included item under the general heading of 'supplies * * * incidental to * * * operation * * * for the * * * production of natural gas and petroleum.'This general classification, too, has been determined by the ICC to be a proper description of hauling authority.In re Application of T. C. Mercer and G. E. Mercer, No. MC-74595 (Sub-No. 15), decided May 24, 1946.

As to the third category utilized by the commission, apparently there is no question and plaintiffs themselves regard testimony of witnesses on such items as generator units as falling within the scope...