In re Application of Gore

Decision Date27 March 1945
Docket Number2290
PartiesIN THE MATTER OF THE APPLICATION OF ARTHUR GORE, DOING BUSINESS AS KEMMERER BUS LINES, KEMMERER, WYOMING, TO INCREASE CERTAIN RATES, FARES AND PRACTICES. ARTHUR GORE, doing business as KEMMERER BUS LINES, KEMMERER, WYOMING, Applicant and Respondent, v. K. K. JOHN, ROY WAINWRIGHT, BRUNO BONICELLI, ALBIN ZABOTNIK and TONY ROLETTO, Protestants and Appellants
CourtWyoming Supreme Court

APPEAL from District Court, Lincoln County; SAM M. THOMPSON, Judge.

In the matter of the application of Arthur Gore, doing business as Kemmerer Bus Lines, to the Public Utilities Commission for increases in fares charged for transportation of passengers in applicant's busses, protested by K. K. John and others. From a judgment confirming the Commission's order increasing the fares, protestants appeal.

Affirmed.

For the Applicant and Respondent the cause was submitted upon the brief and also oral argument of Louis Kabell, Jr., Esq., of Evanston, Wyoming.

POINTS OF COUNSEL FOR APPELLANTS

Conclusion that public interest, convenience and necessity would not be served by granting application was insufficient to constitute findings of fact required by statute to be filed by Commission on appeal. Heitmeyer v. Federal Communications Commission, 95 F.2d 91, Words & Phrases, Fifth Series 1077.

The Commission erred when it took into consideration the fact that no salary or other allowance had been deducted from the gross revenue of the company by the owner-operator.

The Commission's Order must be based on evidence presented at the hearing. A finding without evidence is beyond the power of the commission to make, and nothing can be treated as evidence which is not introduced as such. Atchison, T. &amp S. F. Ry. Co. v. Commerce Commission, ex rel. Illinois Coal Traffic Bureau, 167 N.E. 831.

The only ones who can conduct hearings in matters before the Wyoming Public Service Commission are the duly appointed and qualified members of the Commission. The Public Service Commission cannot delegate anyone outside of its own members to conduct a hearing. If a Manager of the Transportation Department can conduct a hearing that is before the Commission, then its secretary or any of its clerks or stenographers could also conduct a hearing. Chapter 93 Section 1 of the Session Laws of Wyoming, 1935; Sections 94-104, 142 and 146, W. R. S. 1931.

The Public Service Commission has only such powers as are given it by statute. State v. New Hampshire Gas & Electric Co., 163 A. 724; Hudson Valley R. R. Co. v. United Transportation Co., 217 N.Y.S. 614; Bromide Crushed Rock Co. v. Dolese Bros. 247 P. 74; New York Cent. R Co. v. Public Service Commission of Ind. 134 N.E. 282.

The Legislature intended that any party to a hearing before the Wyoming Public Service Commission should have the right to inspect all books, papers, maps, contracts, reports and records affecting the subject matter of the investigation. 51 C. J. 56, Sec. 103; Sections 94-147 and 149, W. R. S. 1931.

Federal Mining & Smelting Co. v. Public Utilities Commission (Idaho) 143 P. 1173, L. R. A. 1917 F. 1195, 1202; New York Edison Co. v. New York, 133 A.D. 728, 118 N.Y.S. 238.

For the Protestants and Appellants the cause was submitted upon the brief and also oral arguments of Glen G. Stanton, Esq.., and W. A. Muir, Esq., both of Rock Springs, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

A petition in error is dismissible, where abstract of record failed to comply with Supreme Court rule requiring that, in case of oral testimony and depositions, substance shall be reduced to narrative form, except where it is deemed necessary to use exact language (Supreme Court Rules, rule 37). Bosick v. Owl Creek Coal Co., 48 Wyo. 46, 41 P 2d 533.

Fryer v. Campbell, 46 Wyo. 491, 28 P. 2d 475; St. Clair v. St. Clair, et al., 46 Wyo. 446, 28 P. 2d 894; Tibbals, et al., v. Graham, 50 Wyo. 277, 61 P. 2d 279; Wyodak Chemical Co. v. Board of Land Com'rs. of Wyo. et al., 51 Wyo. 265, 65 P. 2d 1103.

The party not appealing will not be heard to urge for review errors committed against him in the trial court in order to modify in any manner a judgment in his favor, but said party on appeal may attack erroneous rulings of the trial court in order to sustain his judgment. Muskogee Refining Co. v. Waters-Pierce Oil Co. et al. (Okl.) 215 P. 766. Naill v. Order of United Commercial Travelers of America, (Okl.) 229 P. 835.

The successful party may, without appealing or assigning errors, save the judgment by showing that errors were committed against him below which, if corrected, will make the result reached below a right result. Voorhees v. Arnold, 108 Iowa 77, 78 N.W. 795; State ex rel. Owens v. Consolidated Ind. School Dist. 188 Iowa 959, 176 N.W. 976; Muskogee Ref. Co. v. Waters-Pierce Oil Co. 89 Okl. 279, 215 P. 766; American National Bank of Oklahoma City v. Ardmoreite Pub. Co. (Okla.) 253 P. 81, at page 83.

Respondent's motion to dismiss the appeal and his resistance and objections to the application to return the record for correction, contains grounds showing that the defects in the certificates to the record are such as affect the jurisdiction of the District Court as an appellate Court.

Utah-Idaho Sugar Co. v. Snake River Land Co. (Wyo.) 120 P. 2d 601; Kan.-Wyo. Oil Corp. v. Greaser, (Wyo.) 122 P. 2d 840; Northwestern Terra Cotta Co. v. Smith-Turner Hotel Co. 47 Wyo. 190, 33 P. 2d 915.

Where clerk's certificate was not made until after time for preparing and filing record on appeal expired, appeal must be dismissed. Electrolytic Copper Co. v. Board of County Com'rs of Albany County (Wyo.) 289 P. 1096.

An appeal from a judgment not taken in the manner prescribed by statute will be dismissed. State of California v. Miguel Manriquez, (Cal.) 20 A. L. R. 1441.

The power of the courts in reviewing rates fixed by a legislative or regulating body is limited to a determination of whether they are confiscatory. They will not, as a rule, determine questions of fact although they may consider the legal sufficiency of evidence and findings; and, further, they may determine whether the legislature or board or commission has acted within its powers. 13 C. J. S. 651, Sec. 284-b.

In determining the fair value of the carrier's property an allowance may be made for going value or development cost, since a property with its business attached and in successful operation has a greater value than the same property ready to operate, but not operating, and without any attached business 13 C. J. S. 660, Sec. 286.

Although the reasonableness of rates cannot be based on a consideration of earnings alone, in determining the reasonableness of rates, earnings are to be taken into consideration. 13 C. J. S. 662, Sec. 288.

A carrier is entitled to an adequate return on the fair value of its property, and in computing such return consideration must be given to the cost of maintenance, general expenses, and depreciation. Whether rates are reasonable should be generally determined by their effect on the net earnings of the company from passenger traffic throughout the entire system within the jurisdiction. 13 C. J. S. 1092, Sec. 580.

The credibility of witness who have given conflicting testimony was for the trial court, and not appellate court, the trial court having seen and heard the witnesses, and being in a better position to pass on credibility of each. Caswell v. Ross, 188 P. 977, 27 Wyo. 1.

Where there was substantial evidence sufficient to support the trial court's judgment, the Supreme Court cannot weigh the evidence on appeal. Bissinger & Co. v. Weiss, et al., 195 P. 527, 27 Wyo. 262.

BLUME, Chief Justice. RINER, J., and KIMBALL, J., concur.

OPINION

BLUME, Chief Justice.

This is an appeal from an order of the district court of Lincoln County, Wyoming, confirming an order of the Public Utilities Commission increasing the fares to be charged by the applicant on bus lines running from Kemmerer to Cumberland and Kemmerer to Gomer. From that judgment of the district court the protestants have appealed.

One Arthur Gore is the owner of the bus lines above mentioned. One of the bus lines runs from Kemmerer to Cumberland, a distance, for the round trip, of 31 miles and the rate or fare charged previous to the time of the hearing herein was $ 4 for 12 rides to and from the mine at Cumberland, Wyoming. Other busses travel from Kemmerer to Gomer, Wyoming, a distance of 14 miles for the round trip, and the former charge was $ 2.75 for 12 rides to and from the mine at Gomer. The main passengers traveling on these busses appear to be coal miners. Sometime in the early part of 1943, the exact date not appearing, Arthur Gore, herein mentioned as the applicant or as the Transportation Company, made an application to the Public Utilities Commission of this State for an increase in the fare, or rate to be charged for the transportation of the passengers to and from these mines, proposing to give 10 rides to and from the mine at Cumberland, Wyoming, for $ 4, sales tax included, and to give 10 rides to and from the mine at Gomer, Wyoming, for $ 2.75, sales tax included. It may be noted that the difference in these rates is that formerly 12 rides were given instead of 10 rides for the sums stated. A number of people, hereinafter called protestants, filed a protest with the Public Utilities Commission against the increase of these fares, the date of the filing of the protest not appearing. On March 2, 1943, the Public Utilities Commission made and entered an order that a hearing on the proposed increase of fares should be held on April 6, 1943, at the Court House in Kemmerer, Wyoming, and the increased fares were suspended until the final disposition of the case. A hearing, accordingly,...

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