Browning Freight Lines, Inc. v. Wood
| Decision Date | 18 May 1978 |
| Docket Number | No. 618,No. 12456,618,12456 |
| Parties | BROWNING FREIGHT LINES, INC., and Garrett Freightlines, Inc., Appellants, v. Dahrl E. WOOD and George F. Hurn, and Idaho Public Utilities Commission, Respondents. Application of Dahrl E. WOOD for Transfer of IPUC Motor Common Carrier Permit(First Amended) to George F. Hurn. |
| Court | Idaho Supreme Court |
Kenneth G. Bergquist, Boise, and Ben D. Browning, Salt Lake City, Utah, for appellants.
Leon R. Weeks, Nampa, and Larry D. Ripley, Boise, for respondents Wood and Hurn.
Daniel L. Poole, Deputy Atty. Gen., State of Idaho, for respondent Idaho Public Utilities Commission.
Appellants Browning Freight Lines, Inc. and Garrett Freightlines, Inc., appeal from an order entered by respondent Idaho Public Utilities Commission that transferred a common carrier permit from respondent Dahrl E. Wood to respondent George F. Hurn, which order is affirmed.
The common carrier permit at issue in this case was originally held by W. A. Sheppard, who owned and operated a moving and storage company in Nampa. The permit allowed Sheppard to carry household goods over irregular routes anywhere within Idaho. The permit also authorized heavy hauling and carriage of limited general commodities over irregular routes "Between points and places within a 100 mile radius of Nampa, Idaho, and, also, between points and places in a 100 mile radius of Nampa on the one hand, and points and places in the entire State of Idaho."
When Sheppard died in April, 1972, his daughter and only heir, respondent Dahrl E. Wood, was appointed personal representative of the estate and her husband, the long-time manager of the firm, was appointed the estate's business manager. By June, 1972, the business manager found that he could not manage the entire estate and he therefore executed a lease of the business to respondent George F. Hurn, an employee. From June, 1972, until June, 1973, respondent Hurn apparently ran the business in the customary manner, retained the profits and made lease payments to the estate. The estate's business manager testified that he informed the Idaho Public Utilities Commission of the lease. Although the IPUC's files show that it wrote the company that common carrier permits cannot be leased, no action was taken. In June, 1973, respondent Hurn agreed to purchase the business from respondent Wood. The business manager informed the IPUC of this transaction and in return received a brief letter stating that "the information will be made a part of our formal files."
Two years later, respondent Hurn questioned the Commission about the permit and was told that it remained in the name of W. A. Sheppard. The IPUC apparently told respondent Hurn that the permit could not simply be sold and that formal transfer proceedings were required before respondent Hurn could hold the permit. Proceedings were instituted immediately and the permit was transferred without a hearing 1 to respondent Wood. Respondent Wood then filed an application for transfer of the authority to respondent Hurn.
Appellants Browning Freight Lines, Inc., and Garrett Freightlines, Inc., both common carriers operating in Idaho under IPUC permits, objected 2 to the transfer of the general commodities portion of the permit from respondent Wood to respondent Hurn. Appellants pointed out that under I.C. § 61-809, "The commission may . . . on objection or protest to a transfer restrict the scope of any permit upon a showing of an intentional failure to furnish the service authorized by such permit." Appellants argued that because no service had been rendered by the named permit holder for more than two years and because any service rendered during that time was illegal, the general commodities portion of the authority was "totally dormant." Appellants maintained that this amounted to "intentional failure to furnish the service authorized" for which the general commodities authority should not be transferred to respondent Hurn. Appellants also maintained that the freight bills introduced by respondents as evidence of service to the public showed that no general commodities had been transported to or from twenty-three counties in Idaho in the two and one-half years prior to the transfer application. This appellants argued, amounted to "partial dormancy," in effect, intentional failure to render the service authorized to those counties. Appellants therefore urged that upon transfer the general commodities authority be geographically restricted.
The Commission rejected appellants' arguments and entered an order transferring the permit. In its findings of fact, the Commission stated:
. . . this Commission has the authority to determine if there has been a failure on the part of a permit holder to render transportation service under his permit, and upon a showing of this failure, it may consider the permit holder's authority dormant and refuse to transfer the same. There has not been in the instant case any failure or refusal to operate on the part of the permit holder.
The evidence in this case is clear that although the transferor and the transferee were operating under a mistaken belief that the transfer to Mr. Hurn had been accomplished, they at all times notified the Commission of their actions and operated in a bona fide manner.
The record in this proceeding is clear that the purported transfer to Mr. Hurn in 1972 was not done in any manner as a subterfuge or attempted avoidance of this Commission's rules and regulations . . .
(Appellants) have presented no evidence to this Commission that the proposed transfer will have any effect upon their intrastate motor carrier operations in the State of Idaho, nor have they submitted any evidence to this Commission that there was any subterfuge, design or intent on the behalf of either the transferor to transferee in this proceeding to avoid or subvert the rules and regulations and statutory authority of this Commission.
. . . In this case there has not been any intentional or wilful failure to operate on the part of the permit holder . . .
The Commission then concluded that "no intentional failure of the permit holder to furnish authorized service has been shown" and that transfer of the entire authority to respondent Hurn is "consistent with the public interest." Appellants petitioned the Commission for a rehearing but the petition was denied.
In this appeal, appellants argue that the Commission failed to dispose of the factual and legal issues raised and that, therefore, its action was arbitrary and capricious. Specifically, appellants maintain that the Commission failed "to discuss the basic issue of dormancy and transferror's intentional failure to furnish service . . . and to make appropriate findings thereon." In a second assignment of error, appellants charge that "the Commission erred in failing to discuss the ultimate issue of consistency with the public interest and to discuss the basic facts related thereto and to make appropriate findings thereon."
Appellants correctly point out that the Commission's final order must state both the ultimate facts and the basic facts upon which the decision depends. As this court stated in Boise Water Corp. v. Idaho Public Utilities Comm'n, 97 Idaho 832, 555 P.2d 163 (1976):
In making its determinations the Commission must present in its order the basic (not merely "ultimate") facts necessary to support reasonably its conclusion regarding facts in issue. An "ultimate fact" is generally expressed in the language of a statutory standard, such as "the rate is reasonable; " "the action is in the public interest." "Basic facts" are those upon which the ultimate fact rests. They are more detailed, but are not so detailed as a summary of the evidence. "The findings need not take any particular form so long as they fairly disclose . . . the basic facts upon which the board relies and its ultimate conclusions therefrom . . . ." Pennsylvania R. Co. v. Dept. of Pub. Utilities, 14 N.J. 411, 102 A.2d 618, 631 (1954); Davis, Administrative Law, § 16.06, 450-451 (1958). See, Davis, Administrative Law, § 16.06, 449-454 (1958); Idaho Underground Water User's Assoc. v. Idaho Power Co., supra, 89 Idaho 147, at 155, 404 P.2d 859; Mountain View Rural Tel. Co. v. Interstate Tel. Co., 55 Idaho 514, 46 P.2d 723 (1935). What is essential are sufficient findings to permit the reviewing court to determine that the Commission has acted nonarbitrarily.
97 Idaho at 840, 555 P.2d at 171; Bunker Hill Co. v. Washington Water Power Co., 98 Idaho 249, 561 P.2d 391 (1977).
Once the order has satisfied this requirement, however, this court's review of the findings is limited:
This Court will not weigh the evidence, but reviews the record to ascertain if the conclusions reached are supported by competent evidence. "The Commission's ruling will be reversed only when it appears that it has failed to follow the law or has abused its discretion." (quoting Intermountain Gas Co. v. Idaho Public Utilities Comm'n, 97 Idaho 113, 540 P.2d 775 (1975).)
Hartwig v. Pugh, 97 Idaho 236, 239, 542 P.2d 70, 73 (1975). Key Transportation, Inc. v. Trans Magic Airlines Corp., 96 Idaho 110, 524 P.2d 1338 (1974); Grover v. Ace Equipment Co., 94 Idaho 674, 496 P.2d 673 (1972); Kent v. Idaho Public Utilities Comm'n, 93 Idaho 618, 469 P.2d 745 (1970); Application of Forde L. Johnson Oil Co., 84 Idaho 288, 372 P.2d 135 (1962); Application of Bermensolo, 82 Idaho 254, 352 P.2d 240 (1960).
Appellants first argue that the findings of fact on the issue of total and partial dormancy are inadequate under the standard adopted in Boise Water Corp., supra, and that the Commission's action is therefore arbitrary and capricious. After reviewing the record, this court concludes that the findings of fact, although not highly detailed, "fairly disclose the basic facts" upon which the Commission relied in reaching its ultimate conclusion that intentional failure to...
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