Chapman, In re

• Decision Date: 16 June 1955
• Docket Number: No. 71,71
• Citation: 116 A.2d 130,151 Me. 68
• Parties: , 10 P.U.R.3d 102 In re Everett T. CHAPMAN. Petition to Amend Common Carrier CertificateCongdon Transportation, Intervenor.
• Court: Maine Supreme Court

Page 130

116 A.2d 130

151 Me. 68, 10 P.U.R.3d 102

In re Everett T. CHAPMAN.

Petition to Amend Common Carrier Certificate No. 71.

Congdon Transportation, Intervenor.

Supreme Judicial Court of Maine.

June 16, 1955.

Robert B. Dow, Norway, Paul A. Choate, Auburn, for Everett T. chapman.

Raymond E. Jensen, Portland, for Congdon Trans. Co.

Frank M. Libby, Augusta, for the Public Utilities Commission.

Before FELLOWS, C. J., and WILLIAMSON, TIRRELL, WEBBER, BELIVEAU and TAPLEY, JJ.

WILLIAMSON, Justice.

This case arises on exceptions to a decree of the Public Utilities Commission. R.S. c. 40, § 66 (1944), now R.S. c. 44, § 67 (1954). The petitioner sought and obtained, insofar as we are here interested, an amendment to his common carrier certificate 'to authorize service from and to Portland--South Portland to and from Raymond, South Casco and Naples * * *' Congdon Transportation, a common carrier serving the same points, was permitted to intervene.

In its decree the Public Utilities Commission found:

'After a consideration of all the evidence we are of the opinion that a public necessity exists for this later scheduled (the petitioner's) service and that public convenience will be promoted thereby, and that the granting of the authority herein requested will not seriously affect the existing transportation facilities.'

Exceptions taken by the intervenor to the findings and to the amendment of the decree based thereon raise one issue: Are the findings of fact supported by any substantial evidence, that is, by such evidence as taken alone would justify the findings?

The pertinent part of the statute relating to operation of motor trucks for hire reads:

'After such hearing, the commission shall have the power to issue to the applicant a certificate in a form to be prescribed by the commission, declaring that public convenience and necessity require the operation for which application is made, or refuse to issue the same, or to issue it for the partial exercise only of the privilege sought, * * *. In determining whether or not such a certificate shall be granted, the commission shall take into consideration the existing transportation facilities and the effect upon them, the public need for the service the applicant proposes to render, the ability of the applicant efficiently to perform the service for which authority is requested, conditions of and effect upon the highways involved and the safety of the public using such highways. No such certificate shall be issued unless and until the applicant has established to the satisfaction of the commission that there exists a public necessity for such additional service and that public convenience will be promoted thereby. * * *' R.S. c. 44, § 18 (1944), now R.S. c. 48, § 20 (1954).

The rule of law governing our consideration of the exceptions was settled at an early date in the history of utility regulation.

'The facts on which the rulings of the Commission are based must either be agreed to by the parties or be found by the Commission. Facts thus determined upon are not open to question in this court, unless the Commission should find facts to exist without any substantial evidence to support them, when such finding would be open to exceptions as being unwarranted in law. Hamilton v. Caribou Water, Light & Power Co., 1922, 121 Me. 422, 424, 117 A. 582, 583.

'Questions of fact pertaining to a case are for consideration and decision by the Public Utilities Commission.

'If a factual finding, basic of an order of the commission, is supported by any substantial evidence, that is, by such evidence as, taken alone, would justify the inference of the fact, the finding is final. Hamilton v. Caribou etc., Company, 121 Me. 422, 424, 117 A. 582. Here, as with a jury verdict, a mere difference of opinion between court and commission, in the deductions from the proof, or inferences to be drawn from the testimony, will not authorize the disturbance of a finding.' Gilman v. Somerset Farmers' Co-operative Tel. Co., 1930, 129 Me. 243, 248, 151 A. 440, 442.

See also Public Utilities Comm. v. Johnson Motor Trans., 1951, 147 Me. 138, 84 A.2d 142; O'Donnell, Petition of, 1952, 147 Me. 259, 86 A.2d 389; Public Utilities Comm. v. Gallop, 1948, 143 Me. 290, 62 A.2d 166; Public Utilities Commission v. City of Lewiston Water Commissioners, 1924, 123 Me. 389, 123 A. 177.

"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 Me. Power Co. v. Public Utilities Comm., 1954, 150 Me. 257, 261, 109 A.2d 512, 514; New England Tel. & Tel. Co. v. Public Utilities Comm., 1953, 148 Me. 374, 377, 94 A.2d 801.

The issue may be narrowed to whether the findings of public convenience and necessity are based on any substantial evidence. Other findings are not questioned by the intervenor. The meaning of the phrase 'public convenience and necessity' has been stated by our Court in these words:

'* * * the convenience and necessity, proof of which the statute requires, is the convenience and necessity of the public, as distinguished from that of any individual or group of individuals.' In re Stanley, 1934, 133 Me. 91, 93, 174 A. 93, 94.

In an opinion rendered before the inclusion of 'public convenience and necessity' in the statute, the Court held the act 'to vest in the Commission a broader discretion, having in view not only the necessity and convenience, but the general welfare of the public.' Maine Motor Coaches v. Public Utilities, 1925, 125 Me. 63, 66, 130 A. 866. See also 60 C.J.S., Motor Vehicles § 90; 37 Am.Jur., Motor Transportation § 12.

The facts are not seriously in dispute. The difficulty lies in the application of the law to the facts. The petitioner in his testimony throws no light on the proposed service. In substance he testified that he desired a certificate, and that is the total extent of his contribution to the picture. The petitioner then produced a witness or witnesses from each of the towns for which he was granted a certificate.

Mr. Fortier from Casco runs a summer hotel or resort in South Casco. Sometimes he needs...