Hartwig v. Pugh

• Decision Date: 07 November 1975
• Docket Number: No. 11781,11781
• Parties: Merlyn HARTWIG et al., Protestants-Appellants, v. Stanley R. PUGH and Ronald W. Pugh, dba Pugh Brothers Construction, Aplicants-Respondents, and Idaho Public Utilities Commission, Respondent.
• Court: Idaho Supreme Court

Page 70

542 P.2d 70

97 Idaho 236

Merlyn HARTWIG et al., Protestants-Appellants, v. Stanley R. PUGH and Ronald W. Pugh, dba Pugh Brothers Construction, Aplicants-Respondents and Idaho Public Utilities Commission, Respondent.

No. 11781.

Supreme Court of Idaho.

Nov. 7, 1975.

Michael G. Brady, Moffat, Thomas, Barrett & Blanton, Boise, for protestants-appellants.

Gary L. Montgomery, Sp. Asst. Atty. Gen., Boise, Conley Ward, Asst. Atty. Gen., Boise, for respondent I.P.U.C.

Paul Boyd Mosley, Mosley & Hutchinson, St. Maries, for applicant-respondent Pugh.

McQUADE, Chief Justice.

This appeal is from an order of the Idaho Public Utilities Commission granting a motor common carrier permit to respondents Stanley R. Pugh and Ronald W. Pugh, dba Pugh Brothers Construction (hereinafter respondents), to haul sand, gravel and aggregates thereof over irregular routes within Idaho north of the Salmon River. Respondents own and operate a rock hauling business based in St. Maries.

Respondent Ronald W. Pugh has several years experience in dump truck operations and had operated in business with his brother for 3 years preceding their application in 1974 for a motor common carrier permit. The Commission scheduled a hearing on respondents' application, following which appellants, holders of IPUC motor common carrier permits, filed notices of protest. Prior to the hearing, respondents amended their application by expanding the territory and reducing the variety of commodities for which they sought authorization. Respondent Ronald W. Pugh testified at the hearing on the amended application about respondents' business experience, stable financial position, responsible liability coverage, sound equipment and repair facilities, and about respondents' present type and extent of trucking activities. Respondents introduced testimony from four witnesses with respect to respondents' reputation for excellent service and the existing and anticipated demand for the service proposed. Appellants were present at the hearing and conducted cross-examination of respondents' witnesses. Appellants introduced no evidence on behalf of their protest.

The Commission granted respondents authorization to serve that area of Idaho north of the Salmon River as common carriers, but limited the service authorized to the hauling of sand, gravel, and aggregates. This appeal was taken from the Commission's orders granting the permit and denying appellants' petition for rehearing.

Appellants assign the following as error: (1) The Commission's finding that respondents were fit, willing and able properly to perform the service proposed; (2) The Commission's finding that the service proposed by respondents is or will be required by the present or future public convenience and necessity; (3) The Commission's failure to find that existing motor common carrier permit holders would adequately serve any public demand for the service proposed; (4) The Commission's grant of authority to respondents to serve that area of Idaho north of the Salmon River as requested in respondents' amended application; and (5) The Commission's denial of appellants' petition for rehearing.

Respondents sought, and the Commission granted, a motor common carrier permit as required by the Motor Carrier Act, Chapter 8 of Title 61 (§ 61-801 et seq.), Idaho Code. Section 61-802 sets the following requirements for issuance of a motor carrier permit:

'It shall be unlawful for any motor carrier, as the term is defined in this chapter, to operate any motor vehicle in motor transportation without first having obtained from the commission a permit covering such operation.

A permit shall be issued to any qualified applicant authorizing the whole or any part of his operations covered by the application made to the commission in accordance with the provisions of this chapter, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules and regulations of the commission thereunder, and that the proposed service to the extent authorized by the permit, is or will be required by the present or future public convenience and necessity.

In considering public convenience and necessity the commission shall, prior to the issuance of a permit, consider the effect of such proposed motor carrier operation upon the operations of any authorized common carrier then operating over the routes or in the territory sought. The mere existence of a common carrier in the territories sought who possesses authority similar to that sought shall be insufficient cause to deny the issuance of the permit.'

In its order granting respondents a motor common carrier permit, the Commission specifically found respondents fit, willing and able to perform the service proposed and that the service is or will be required by the present or future public convenience and necessity.

This Court will not weigh the evidence, but reviews the record to ascertain if the conclusions reached are supported by competent evidence. 'The Commission's ruling will be reversed only when it appears that it has failed to follow the law or has abused its discretion.' ¹

In accord with this standard, appellants argue on their first assignment of error that the Commission abused its discrtion and erred as a matter of law in determining that respondents were qualified for a permit as a common carrier. Appellants contend that this Court must decide as a matter of law whether the Commission properly applied the definition of a common carrier to the evidence before it.

Appellants cite much authority defining a 'common carrier.' However, for the purposes of the Motor Carrier Act, the Legislature has enacted a sufficient definition of a 'common carrier,' ² by which we are bound. Essentially appellants argue that the Commission erred in applying the definition of common carrier to respondents because respondents' business at the time of their application and the hearing was largely divided between contract and private carrier work. ³ We cannot agree that the Commission erred.

There was no error of law in granting a common carrier permit to an applicant whose previous business operations were not conducted as a common carrier. It is illegal for an applicant for a permit to develop a business of the character for which the permit is sought prior to the issuance of the permit under which the business may be lawfully conducted. As shown in the requirements of § 61-802, an applicant may obtain a permit upon a proper showing that the proposed service will be required by the future public convenience and necessity.

Appellants also argue that the evidence is insufficient to support the Commission's finding that respondents are fit, willing and able properly to perform the service proposed. It was a question of fact for the Commission to determine whether respondents intended to perform and were fit, willing and able to perform as a common carrier, as that term is defined by § 61-801(f). ⁴ We have examined the record and find there is competent evidence to support the Commission's conclusion. That conclusion will not be disturbed on appeal.

Appellants allege in their second assignment of error that the evidence is insufficient to support the Commission's finding that the service proposed by respondents is or will be required by the present or future public convenience and necessity. Respondent Ronald W. Pugh testified that respondents had declined requests for their services because they were not a common carrier permit holder. Respondents also introduced testimony from four witnesses who had need for the services of a common carrier that there was insufficient common carrier service available and that the business concerns represented by the witnesses anticipated increased demand for common carrier service in the future. This is competent evidence to support the Commission's finding, and the Commission's order shows it was carefully considered. ⁵

Appellants' third assignment of error alleges the Commission erred in failing to find that existing common carrier permit holders would adequately serve any public demand for the service proposed by respondents. Appellants argue that § 61-802 requires permit applicants to show the proposed service is not adequately being performed by common carriers operating over the routes or in the territory sought. Appellants submit that respondents introduced no direct evidence of inadequate existing service.

We do not agree with appellants' contention that § 61-802 places the burden on permit applicants to show that existing service is inadequate. In Application of Forde L. Johnson Oil Co., ⁶ the appellants-protestants argued that the burden of proof was upon applicants to show the proposed service is or will be in the public interest, after the Commission had found that '. . . protestants did not show that they had or would have any definite substantial loss of intrastate traffic revenue.' This Court held:

'It is true that no duty rests upon protestant to show anything, however if a protestant desires that the Commission be informed as to the effect which the granting of the application will have upon him, it is incumbent upon the protestant to make such showing. Not only are the capabilities of the protesting carriers matters which are peculiarly within their knowledge, it could hardly be expected that applicant would be interested in introducing evidence tending to show that the granting of his application would have an...