Ephraim Freightways, Inc. v. Public Utilities Commission

• Decision Date: 25 March 1963
• Docket Number: No. 20274,20274
• Citation: 151 Colo. 596,380 P.2d 228
• Parties: , 48 P.U.R.3d 258 EPHRAIM FREIGHTWAYS, INC., a Corporation, Plaintiff in Error, v. PUBLIC UTILITIES COMMISSION of the State of Colorado, and Joseph P. Nigro, Ralph C. Horton, and Henry E. Zarlengo, the members thereof, and Rio Grande Motor Way, Inc., Defendants in Error.
• Court: Colorado Supreme Court

Page 228

380 P.2d 228

151 Colo. 596, 48 P.U.R.3d 258

EPHRAIM FREIGHTWAYS, INC., a Corporation, Plaintiff in Error, v. PUBLIC UTILITIES COMMISSION of the State of Colorado, and Joseph P. Nigro, Ralph C. Horton, and Henry E Zarlengo, the members thereof, and Rio Grande Motor Way, Inc. Defendants in Error.

No. 20274.

Supreme Court of Colorado, In Department.

March 25, 1963.

Rehearing Denied April 15, 1963.

Akolt, Turnquist, Shepherd & Dick, G. M. Westa, Pauline Nelson, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John J. Conway, Asst. Atty. Gen., Denver, for defendants in error.

PRINGLE, Justice.

We shall refer to plaintiff in error as Applicant and to the respective defendants in error as the Commission and as Motor Way.

Applicant, the owner of a permit issued by the Commission authorizing it to conduct business as a contract carrier, petitioned the Commission in 1954 for a conversion of its private carrier permit into a Certificate of Public Convenience and Necessity under which its operation would be expanded and conducted as a common carrier. In 1956 the Commission denied the authority for which the applicant petitioned, basing its action on the proposition that public convenience and necessity for the proposed conversion could not be shown by the testimony of witnesses who in the past or at the time of the petition were being served adequately by the applicant in its capacity as a contract carrier.

Judgment thereafter having been entered by the district court upholding the Commission's order denying the common carrier permit, the applicant obtained review in this Court where it was held that evidence offered by witnesses presently satisfied with the private carrier service of the applicant has a probative value on the question of public convenience and necessity when such evidence tends to establish the nature, extent, volume and general character of the business conducted by the applicant who seeks conversion from private carrier to a common carrier status. Accordingly, the judgment of the district court was reversed and the cause remanded with directions to order further proceedings by the Commission in accordance with the views expressed. Ephraim Freightways, Inc. v. Public Utilities Comm., 141 Colo. 330, 347 P.2d 960.

After the matter was remanded to the Commission, counsel for applicant and for Motor Way stipulated to a procedure allowing the Commission to review the previous record made without adducing new evidence.

The Commission, after a reconsideration and review of the record of the case, again denied the authority sought by the applicant. The district court having affirmed the Commission's order, applicant again seeks review by writ of error.

Generally, applicant is seeking a Certificate of Convenience and Necessity authorizing operations from and to Denver, Colorado Springs and Pueblo on the one hand, to and from Grand Junction on the other, serving all intermediate points on U. S. Highway 50 between Gunnison and Grand Junction and all intermediate points between Leadville and Grand Junction. Motor Way is the sole common carrier by motor vehicle presently serving all points involved in the instant application, although two private carriers and a second common carrier also operate within certain portions of the area with which the application is involved.

The applicant contends that the evidence which it introduced of the size and diversity of its present operations and of the satisfaction of its present customers, when considered with the specific testimony which it produced from shippers in the area tending to show dissatisfaction with the existing common carrier service, established as a matter of law that public convenience and necessity required the granting of the common carrier authority for which it petitioned, and that the Commission in denying the authority completely ignored the import of applicant's present extensive operations as a private carrier. We do not, under the circumstances of this case, agree with these contentions.

The Commission determined that in order to receive common carrier authority it was necessary for the applicant to prove that there was a public need for additional common carrier service in the area involved, and correlatively that existing service by Motor Way in that area was inadequate to serve the need of the area. The Commission was correct.

This Court has consistently held that the policy of the State of Colorado and the whole theory upon which the structure of Public Utility Commission power is based is that of regulated monopoly. Archibald v. Public Utilities Comm., 115 Colo. 190, 171 P.2d 421; Denver & Rio Grande Western R. R. v. Public Utilities Comm., 142 Colo. 400, 351 P.2d 278. In accordance with this theory of regulated monopoly, we have held that a common carrier serving a particular area is entitled to protection against competition so long as the offered service is adequate to satisfy the needs of the area, and no finding of public convenience and necessity for common carrier service is justified unless present service offered in the area is inadequate. Denver & Rio Grande Western R. R. v. Public Utilities Comm., supra; Public Utilities Comm. of Colorado v. Donahue, 138 Colo. 492, 335 P.2d 285.

The question involved in the granting or denial of a Certificate of Public Convenience in a particular area is not whether the extent of business in a particular area is sufficient to warrant more than one certified carrier, Donahue v. Public Utilities Comm., 145 Colo. 499, 359 P.2d 1024, but rather whether public convenience and necessity demand the service of an additional transport facility. The existence of an adequate and satisfactory service by motor carriers already in the area is a negation of a public need and demand for added service by another carrier. Denver &...