Fuller-Toponce Truck Co. v. Public Service Commission (Utah Citizens Rate Ass'n, Intervener)

• Decision Date: 05 December 1939
• Docket Number: 5980
• Parties: FULLER-TOPONCE TRUCK CO. v. PUBLIC SERVICE COMMISSION et al. UTAH CITIZENS RATE ASS'N, Intervener
• Court: Utah Supreme Court

96 P.2d 722

99 Utah 28

FULLER-TOPONCE TRUCK CO. v. PUBLIC SERVICE COMMISSION et al.

UTAH CITIZENS RATE ASS'N, Intervener

No. 5980

Supreme Court of Utah

December 5, 1939

Original proceeding by the Fuller-Toponce Truck Company to review an order of the Public Service Commission, cancelling and annulling plaintiff's certificate of convenience and necessity after a rehearing, granted to the Utah-Idaho Central Railroad Company, on the Commission's order granting such certificate, in which the Utah Citizen's Rate Association intervened.

Order on rehearing affirmed.

George H. Lowe and Ira A. Huggins, both of Ogden, for plaintiff.

Joseph Chez, Atty. Gen., DeVine, Howell & Stine, of Ogden, and Robert B. Porter and Irvine, Skeen, Thurman & Miner, all of Salt Lake City, for defendant.

WOLFE Justice. MOFFAT, C. J., and LARSON, McDONOUGH, and PRATT JJ., concur.

OPINION

WOLFE, Justice.

This case is here on a writ of certiorari to review an order of the Public Service Commission of Utah. Plaintiff operates trucking lines in both intrastate and interstate commerce. On March 30, 1937, after due notice to all parties and after a hearing held before it in Salt Lake City, Utah, on April 20, 21 and 22, 1936, the Public Service Commission of the State of Utah issued its report and order granting to the Plaintiff, Fuller-Toponce Truck Company, Certificate of Convenience and Necessity No. 464, authorizing it "to operate as a common motor carrier of property in intrastate commerce between Salt Lake City and the Utah-Idaho State Line over and upon highways No. U.S. 91, and Utah State 101 and 61, serving the intermediate points of North Ogden, Pleasant View, Willard, Perry, Brigham, Mantua, Wellsville, Hyrum, Millville, Providence, Logan, North Logan, Hyde Park, Smithfield, Richmond, and Lewiston, excluding local service between Salt Lake City and Ogden, Utah; also, between all points on highway U.S. 91 north of Ogden and Utah State Highways 101 and 61, and all points on U.S. Highway 30-S (Brigham to Tremonton), and on Utah State Highway 41, between Tremonton and the Utah-Idaho State Line."

On April 19, 1937, protestant, Utah-Idaho Central Railroad Company, filed an application for rehearing on the order granting Certificate No. 464. On April 22, 1937, plaintiff filed its objection. After reviewing the evidence presented at the first hearing, the Commission, on April 27, 1937, granted the application for rehearing. Plaintiff then filed a motion to rescind and amend the order granting a rehearing. This motion was denied on May 12, 1937, and the matter was set for hearing before the commission at Logan, Utah, on June 7, 1937.

After formal notice to all interested parties, a hearing was held in Logan, Utah, before the Commission on June 7, 1937, which hearing was continued in Salt Lake City, Utah, on June 9, 10, and 11 and July 1 and 2. The Commission on December 6, 1937, issued its report and order, styled Certificate of Convenience and Necessity No. 478, in which it "cancelled and annulled" Certificate of Convenience and Necessity No. 464 issued on March 30, 1937 to Plaintiff but granted to Plaintiff the right "to operate as common motor carrier of property in intrastate commerce between Salt Lake City, Utah, on the one hand, and Perry, Mantua, and College Ward, Utah, on the other hand."

Plaintiff brings this appeal from said order of the Public Service Commission asserting that the Commission acted beyond the scope of its authority and that the order violates plaintiff's rights under the Constitution and laws of the United States and of the State of Utah, because: (1) Certificate of Convenience and Necessity No. 464 issued on March 30, 1937 authorizing plaintiff to operate, was final and continuing and there was no proof offered nor reason given in the record for its modification or annulment; (2) the cancellation and annulment of the Certificate deprives the plaintiff "of privileges, immunities and property without due process of law" in violation of 14th Amendment to U.S. Constitution U.S.C.A. and of Article 1, Sec. 7 of Const. of Utah; (3) the Order impairs the obligation of contract between plaintiff and the State of Utah in violation of Art. 1, Sec. 18 of Const. of State of Utah and Art. 1, Sec. 10 of Const. of U.S.; (4) the Commission failed to make findings required by law as to various points; (5) the findings of the Commission on certain points are not "supported by any sufficient evidence and * * * [are] contrary to the evidence adduced * * *"; and (6) the Order is "without the bounds of reason and is capricious and arbitrary" and is "contrary to law."

The appellant makes observation that three members of the old commission which granted Certificate No. 464 found for it, as did one member of the new commission, which revoked said certificate, and that consequently it has a net majority of two in its favor. The Public Service Commission is, however, a unit, just as is this court, and its action at any given time is governed by a macourt, and its action at any given time is governed by a majority vote of its incumbent members. See Sec. 76-1-4, R. S. U. 1933, which provides in part:

"* * * any action taken by a majority of the commission shall be deemed the action of the commission."

Chapter 65, Sec. 3, of the Laws of Utah, 1935, provides in part:

"All common motor carriers of property or passengers as defined in this act are hereby declared to be common carriers within the meaning of the public utility laws of this state * * *."

Sec. 76-4-1, R. S. U. 1933, reads:

"The commission is hereby vested with power and jurisdiction to supervise and regulate every public utility in this state, and to supervise all of the business of every such public utility in this state, and to do all things, whether herein specifically designated or in addition thereto, which are necessary or convenient in the exercise of such power and jurisdiction."

Sec. 6 of Chapter 65, Laws of Utah, 1935 provides:

"It shall be unlawful for any common motor carrier to operate as a carrier in intrastate commerce within this state without first having obtained from the commission a certificate of convenience and necessity. * * *"

Sec. 21 of the same Chapter provides:

"The commission may at any time for good cause, and after notice and hearing, suspend, alter, amend or revoke any certificate, permit or license issued by it hereunder."

There is no question that the Commission has jurisdiction over plaintiff and that it has the power to issue and to revoke certificates of convenience and necessity. The questions remaining are whether the Commission had a proper basis for its actions and whether it followed the proper procedure.

The statute provides that upon application by a carrier for a Certificate the Commission "shall fix a time and place for hearing thereon which shall be not less than 10 days after such filing," and shall notify all interested parties including competing carriers. "If the Commission finds from the evidence that the public convenience and necessity require the proposed service or any part thereof it may issue the certificate." There are several things listed which the Commission should consider before granting a Certificate and it is forbidden to issue a Certificate if it finds certain things.

No challenge has been made to the action of the Commission in issuing Certificate No. 464 and apparently in its issue all the terms of the statute were complied with.

On April 19, 1937 (nineteen days after Certificate No. 464 had been issued), the Utah-Idaho Central Railroad Company filed a petition for rehearing. This was in accord with Sec. 76-6-15, R. S. U. 1933, which provides that any party to the action may apply for a rehearing within 20 days after the order. Plaintiff objected to the granting of a rehearing but its objection was overruled. On April 27, 1937, the Commission granted the rehearing. This accords with the statutory requirement of twenty days. Plaintiff filed a motion to rescind said order for rehearing but the motion was denied and rehearing was set for June 7, 1937.

All parties appeared fully at the rehearing which continued through July 2, 1937, but not until December 6, 1937, did the Commission issue its order revoking Certificate No. 464 and granting Certificate No. 478. Was this a delay in violation of the statute and was plaintiff injured by it?

Sec. 76-6-15, R. S. U. 1933, provides in part:

"* * * If any application for a rehearing is granted without a suspension of the order involved, the commission shall forthwith proceed to hear the matter with all dispatch and shall determine the same within twenty days after final submission, and, if such determination is not made within said time, it may be taken by any party to the rehearing that the order involved is affirmed. * * *"

From the record in this case it is not apparent whether or not the Commission suspended its order granting Certificate No. 464, pending the outcome of the rehearing. Assuming that it did not suspend said order, what is the effect of the Commission's delay of more than 20 days?

The Public Utilities Commission of Utah was created and given certain jurisdiction and powers by the enactment of Chapter 47 of the Laws of Utah 1917. The Act was patterned after the Public Utilities Act of California, approved April 23, 1915 and the particular wording in question follows exactly the wording in the California Act. See Deering, General Laws of California, 1915, Act. 2886, Sec. 66, at p. 1411. The Supreme Court of California construed these...