Gateway City Transfer Co. v. Pub. Serv. Comm'n

• Decision Date: 12 October 1948
• Citation: 34 N.W.2d 238,253 Wis. 397
• Parties: GATEWAY CITY TRANSFER CO. v. PUBLIC SERVICE COMMISSION.
• Court: Wisconsin Supreme Court

253 Wis. 397

34 N.W.2d 238

GATEWAY CITY TRANSFER CO.

v.PUBLIC SERVICE COMMISSION.

Supreme Court of Wisconsin.

Oct. 12, 1948.

Appeal from an order of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Affirmed.

Action by Gateway City Transfer Company to review an order of the Public Service denying application for authority to render additional service. From a judgment affirming the order, the plaintiff appeals.-[Statement by Editoral Staff.]

Affirmed.

See also 353 Wis. 229, 33 N.W.2d 134.Gateway City Transfer Company, hereafter referred to as petitioner, commenced this proceeding on August 2, 1947, to review an order entered on May 29, 1947, in a proceeding begun by the petitioner before the commission. The petitioner sought authority to render additional service by its truck lines as stated in its petition. Objections were filed by other common motor carriers whose routes would be affected if the petition were granted. There was a trial which occupied 22 days. The record comprises some 2349 pages, and 40 numbered exhibits.

The petitioner is the holder of certificates authorizing its operation as a common motor carrier between various points in Wisconsin, and over several routes. The petitioner sought to extend these routes and to have certain restrictions, exceptions and limitations upon its authority removed by order of the commission. The petitioner has stated the substance of the petition, which we adopt as presenting with substantial accuracy the matter before the commission:

‘Case 1. Service between Beloit, Janesville, Edgerton, Stoughton, and Madison and other points served by Carl Timm, a common motor carrier doing business as Timm Transit.

‘Case 2. Service between points such as Kenosha and Racine on the one hand and on the other Milwaukee, Beloit, Janesville, and other points served by Motor Transport Company, another common motor carrier.

‘Case 3. Service between La Crosse and Milwaukee. These points are now served by Service Transfer & Storage Company, a common motor carrier.

‘Case 4. Service between La Crosse and Madison. These points are now served by Standard Freight Lines, a common motor carrier.

‘Case 5. Service between points which is not afforded by any single-line common motor carrier; e. g. LaCrosse-Beloit, La-Crosse-Janesville, LaCrosse-Racine, LaCrosse-Kenosha, Racine-Kenosha, Racine Stoughton, etc.

‘In general, the service proposed between Racine, Kenosha, Milwaukee, Beloit, and Janesville and Madison would be competitive with single-line common motor carrier service provided now only by Motor Transport Company. The proposed service between LaCrosse and Milwaukee would be competitive with single-line common motor carrier service provided only by Service Transfer & Storage Company; the service between LaCrosse and Madison proposed would be competitive with the single-line service provided only by Standard Freight Line; the service proposed between Beloit, Janesville, and Madison would be competitive only with the service of Carl Timm; all other proposed services would be competitive only with joint-line operations of those carriers and others.’

The hearings were had before an examiner. At the close of the evidence and after argument by counsel the examiner summarized the evidence and recommended Findings of Fact as follows:

It is recommended that the Commission find:

1. That the applicant is fit, willing and able to render the proposed service.

2. That applicant has failed to show that the grant of the application is required by public convenience and necessity.

3. That protestants have shown that the grant of the application will unduly interfere with their ability to continue the proper rendition of adequate service to the public; and recommended that the application be denied.

The summary of the evidence covers the entire record and consists of 28 typewritten pages-too long to be set out in full in this opinion.

The report of the examiner was dated September 11, 1946. Copies of the examiner's report were mailed to all parties of record on November 16, 1946. Exceptions to the report were filed. Parties in opposition to the application were granted an extension of time within which to file reply briefs, to December 6, 1946. The oral arguments were made by petitioner and the objectors at Madison, and on May 29, 1947, the Commission filed its findings of ultimate conclusions of fact and conclusions of law, accompanies by a discussion of the evidence, and ordered that the applications of the petitioner should be denied, Commissioner Whitney dissenting.

There was an application for rehearing which was denied July 3, 1947.

Petition for review was filed by the applicant, hereafter referred to as the petitioner, in the circuit court on August 2, 1947. On the hearing the petitioner and the interested objectors appeared by counsel. The matter was submitted to the circuit court. The circuit court took up and considered every contention of the petitioner, and on March 26, 1948, pursuant to order of the circuit court, a final order was entered affirming the order of the commission, from which the petitioner appealed on the 26th day of April, 1948. Additional facts will be stated in the opinion.

Philip H. Porter, of Madison (Daniel H. Grady, of Portage, of counsel), for appellant.

James Ward Rector, of Madison, for respondent Public Service Commission.

R. W. Peterson, of Madison, for respondent Timm Transit.

Glenn W. Stephens, of Madison, for respondents Earl F. Schultz et al.

Arthur M. Sells and Cornelius T. Young, both of Milwaukee, for respondent Motor Transport Co.

ROSENBERRY, Chief Justice.

The first contention made by petitioner is that the conclusion of the commission was affected by error in holding that a presumption against competition between common motor carriers was created by ch. 194 of the Statutes. The chapter relates to motor transportation. This contention is based upon the following statement found in the opinion of the commission:

‘Counsel for applicant argue that the statutes set up a presumption in favor of competition. The contrary is the fact. Section 194.23 requires that ‘before granting a certificate or amendment the commission shall take into consideration existing transportation facilities in the territory proposed to be served * * *.’ Section 194.18 makes it the Commission's duty, among other things, so to regulate common motor carriers as to ‘prevent unnecessary duplication of service between such common motor carriers or between them and the lines of competing steam and electric railroads.’ The burden is upon applicant under Section 194.23 to prove that additional transportation facilities are needed by the public. Once applicant has met this burden, it is for existing public carriers in the affected territory to prove that the grant of the application in whole or in part will interfere unduly with their proper rendition of adequate service.'

We can discover nothing in this discussion bearing upon the question of presumption in favor of either monopoly or competition. It relates to the procedure, which the commission correctly stated. The commission said in effect, in response to the argument of counsel that the statutes do not set up a presumption in favor of competition, an allegation that the statute does not set up a presumption in favor of competition is not an assertion that the commission favored monopoly or indulged in a presumption in favor of it.

In Clintonville Transfer Line v. Public Service Commission, 248 Wis. 59, at page 67, 21 N.W.2d 5, we dealt extensively with the matter of the powers of the Public Service Commission under the statute relating to common motor carriers, but did not deal with the matter of evidence. Sec. 227.10(1) Stats., provides:

‘Agencies shall not be bound by common law or statutory rules of evidence. They shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony. They shall give effect to the rules of privilege recognized by law. Basic principles of relevancy, materiality and probative force, as recognized in equitable proceedings, shall govern the proof of all questions of fact.’

Sec. 227.20(1) provides that the court may reverse or modify a decision of the commission:

‘If the substantial rights of the appellant have been prejudiced as a result of the administrative findings, inferences, conclusions or decisions being. * * * (d) unsupported by substantial evidence in view of the entire record as submitted’.

By statute, in reviewing administrative decisions the court is to give due weight to the experience, technical competence and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it. The statute definitely limits the review by the court in matters relating to evidence, to the question whether the finding is supported by substantial evidence or is ‘(e) arbitrary or capricious.’ If the decision of the commission is supported by substantial evidence in view of the entire record, then the decision is to be affirmed if not otherwise contrary to law.

Sec. 194.34 provides:

‘The commission, upon the filing of an application for such license, shall have power as the public interest may require, upon a finding of public convenience and necessity * * * to grant or deny the license prayed for * * * and may attach to the exercise of the privilege granted by such license such terms and conditions as in its judgment the public interests may require.’

The term ‘public interest’ is a very broad and comprehensive one. It means different things in different connotations. For instance, it is in the public interest that healthy cattle be produced and kept free from disease. Stickley v. Givens, 176 Va. 548, 11 S.E.2d 631. A proceeding by the Federal Trade Commission to prevent the use of unfair methods is in the ‘public interest’if the unfair methods threaten the existence of the potential as well as the...