Dan Dugan Transport Co. v. Maas Transport, Inc.

• Decision Date: 01 February 1979
• Docket Number: No. 9522,9522
• Citation: 275 N.W.2d 855
• Court: North Dakota Supreme Court
• Parties: In the Matter of DAN DUGAN TRANSPORT COMPANY, and Northern Tank Line, Complainants and Appellees, Matador Service, Inc., Suhr Transport Company, Skjonsby Truck Line, Lawrence Transportation, Getter Trucking, Inc., Transport, Inc. and Indianhead Truck Line, Inc., Intervenors and Appellees, and Public Service Commission, State of North Dakota, Appellees, v. MAAS TRANSPORT, INC., and Carl J. Austad & Son, Inc., Respondents and Appellants. Civ.

Page 855

275 N.W.2d 855

In the Matter of DAN DUGAN TRANSPORT COMPANY, and Northern Tank Line,

Complainants and Appellees, Matador Service, Inc., Suhr

Transport Company, Skjonsby Truck Line, Lawrence

Transportation, Getter Trucking, Inc., Transport, Inc. and Indianhead Truck Line, Inc., Intervenors and Appellees, and Public Service Commission, State of North Dakota, Appellees, v. MAAS TRANSPORT, INC., and Carl J. Austad & Son, Inc.,

Respondents and Appellants.

Civ. No. 9522.

Supreme Court of North Dakota.

Feb. 1, 1979.

Wheeler, Wolf, Wefald & Peterson, Bismarck, for complainant and appellee, Dan Dugan Transport Co., and intervenors and appellees, Matador Service, Inc., and Suhr Transport Co.; argued by R. W. Wheeler, Bismarck.

Alan Foss and Kip B. H. Erickson, Fargo, for complainant and appellee, Northern Tank Line, and intervenor and appellee, Skjonsby Truck Line.

McIntee & Whisenand, Williston, for intervenors and appellees, Lawrence Transp. and Getter Trucking, Inc.; submitted on the brief by Frederick E. Whisenand, Williston.

Ronald B. Pitsenbarger, Moorhead, Minn., for intervenors and appellees, Transport, Inc. and Indianhead Truck Line, Inc.; submitted on the brief.

David W. Tiistola, Special Asst. Atty. Gen., Public Service Commission, Bismarck, for appellee, Public Service Commission.

T. L. Secrest, Hettinger, for respondents and appellants.

ERICKSTAD, Chief Justice.

Maas Transport, Inc. (Maas) and C. J. Austad and Son, Inc. (Austad) appeal from a district court order that affirmed the Public Service Commission's order to revoke Maas' Special Common Motor Carrier Certificate on the grounds of abandonment. We affirm.

Maas had authority to operate in this state from the Public Service Commission (PSC) pursuant to Special Motor Carrier Certificate No. 251. ¹ In the early 1960's, Maas was an active carrier, owning and operating over 30 tractors and 40 trailers. Business had declined in recent years, however, to an occasional truck hauling cattle, cement, or a trailer house. On June 13, 1977, the PSC approved the lease of one truck by Maas from Austad.

Dan Dugan Transport Company filed a complaint with the PSC on July 27, 1977, alleging, among other things, that Maas' Special Certificate had been abandoned and sought to have the certificate cancelled by the PSC. On August 5, 1977, Northern Tank Line filed a complaint and petition to intervene with the PSC. This petition to intervene was granted and seven other common motor carriers were also subsequently allowed to intervene. ² Austad was permitted to intervene in support of Maas' position.

A hearing was held before a hearing examiner of the PSC on October 6, 1977, and by order dated December 12, 1977, the PSC, in a 2-1 decision, revoked and cancelled Maas' certificate.

The PSC found that none of Maas' equipment was operable or licensed, and, since May 1, 1977, Maas' only truck traffic was with the truck leased from Austad. The PSC also found that Austad was in essence providing the transportation service. The relevant PSC's findings follow:

"VII.

"Maas has little knowledge of the operations and is not exercising any control over the actual conduct of the transportation service. Maas is not vested with complete control or possession and use of the vehicle and is not the one actually serving the shipper. Maas has no funds with which to operate said leased vehicle. The drivers are paid and dispatched by Austad and payroll records are kept by Austad. The equipment is owned, maintained and fueled by Austad. Austad is soliciting traffic in Maas' name, but Austad hires, dispatches and pays the drivers, at no financial risk to Maas. Austad obtained the insurance and has guaranteed payment of the premium."

"VIII.

"The Sheriff of Williams County, North Dakota is familiar with substantially all the trucking equipment of the Respondent, Mass Transport, Inc., which is located in Williston or stored on a farm west of the City of Williston, and in his opinion, none of the equipment of the Respondent, Maas Transport, Inc., is operable or in running condition, nor is any of the equipment licensed."

The PSC stated in its conclusions of law that Maas had "violated the laws of this State in turning its operations under Special Certificate No. 251 over to another carrier without the approval of this Commission under the guise of leasing a vehicle from another carrier." The PSC also concluded that, "Non-use of authority, when accompanied by either inability to operate, refusal to accept business, or non-compliance with a proper Commission Order, ordinarily constitutes sufficient grounds for a finding of abandonment." The PSC then concluded that since Maas had neither the equipment nor resources to acquire any equipment to provide the services that it was obligated to provide, it had abandoned its authority.

Maas appealed to district court alleging the following specifications of error:

"1. That the Public Service Commission erred in making and entering a conclusion of law that Maas Transport, Inc., violated the laws of this state in turning its operations under Special Certificate No. 251 over to another carrier without the approval of this Commission under the guise of leasing a vehicle from another carrier.

"2. That the Public Service Commission erred in making and entering a conclusion of law that Maas Transport, Inc., has neither the equipment nor resources to acquire any equipment to provide the transportation services which it is obligated to furnish under the statutes of the State of North Dakota and the Rules and Regulations of the Public Service Commission of the State of North Dakota.

"3. That the Public Service Commission erred in making and entering a conclusion of law that Maas Transport, Inc., has unlawfully abandoned its common motor carrier operations under Special Certificate No. 251, and shippers formerly relying upon it for service are now using the services of other authorized carriers.

"4. That the Public Service Commission erred in making and entering a conclusion of law that Special Common Motor Carrier Certificate No. 251 should be revoked and cancelled by reason of the unlawful abandonment of service thereunder by Maas Transport, Inc."

The district court affirmed the PSC's order and this appeal followed.

The issue, as stated by the appellant, is whether or not the North Dakota Public Service Commission should have revoked the operating authority of Maas Transport, Inc., based on a complaint filed with the Commission by several competing carriers?

We have noted many times the scope of our review in appeals from an administrative agency. See, e. g., Steele v. North Dakota Workmen's Compensation Bureau, Civil No. 9481 (N.D.1978); Bank of Hamilton v. State Banking Bd., 236 N.W.2d 921 (N.D.1975); O'Brien v. North Dakota Workmen's Comp. Bureau, 222 N.W.2d 379 (N.D.1974); and Geo. E. Haggart, Inc. v. North Dakota Work. Comp. Bur., 171 N.W.2d 104 (N.D.1969).

In an appeal from the Public Service Commission, we follow the specific statutory guidelines contained in the Administrative Agencies Practice Act, Chapter 28-32, N.D.C.C. See Section 49-18-43, N.D.C.C.; Petition of Village Board of Wheatland, 77 N.D. 194, 202, 42 N.W.2d 321, 326 (1950).

Section 28-32-21, N.D.C.C., provides for review in the Supreme Court as follows:

"The judgment of the district court in an appeal from a decision of an administrative agency may be reviewed in the supreme court on appeal in the same manner as provided in section 28-32-19, except that the appeal to the supreme court must be taken within sixty days after the service of the notice of entry of judgment in the district court."

Section 28-32-19, N.D.C.C., provides as follows:

"The court shall try and hear an appeal from the determination of an administrative agency without a jury and the evidence considered by the court shall be confined to the record filed with the court. If additional testimony is taken by the administrative agency or if additional findings of fact, conclusions of law, or a new decision shall be filed pursuant to section 28-32-18, such evidence, findings, conclusions, and decision shall constitute a part of the record filed with the court. After such hearing, the court shall affirm the decision of the agency unless it shall find that any of the following are present:

1. The decision or determination is not in accordance with the law.

2. The decision is in violation of the constitutional rights of the appellant.

3. Provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions and decision of the agency are not supported by its findings of fact.

If the decision of the agency is not affirmed by the court, it shall be modified or reversed, and the case shall be remanded to the agency for disposition in accordance with the decision of the court."

Maas has not challenged the PSC's findings of fact; therefore, we assume that the findings are correct. Haugland v. North Dakota Employment...