In re Application of Nichols
| Decision Date | 05 November 1948 |
| Docket Number | 7476 |
| Citation | 199 P.2d 255,68 Idaho 490 |
| Parties | In re Application of NICHOLS. v. NICHOLS et al UNION PAC. STAGES, Inc. |
| Court | Idaho Supreme Court |
Appeal from Public Utilities Commission.
Reversed and remanded.
L. H Anderson, of Pocatello, for protestant-appellant.
"Good cause" means a substantial or legal cause as distinguished from an assumed or imaginary pretense, or a wish or desire of the applicant. State v. Sayre, 206 Iowa 1334, 222 N.W. 20, 22; State v. McTague, 173 Minn. 153, 216 N.W. 787; Application of Title Guarantee & Trust Co., 183 Misc. 490, 48 N.Y.S.2d 374, 375.
"Public interest" means something in which the public, the community at large, has an interest. It does not mean anything so narrow as the interests of a particular locality or localities. State v. Crockett, 86 Okl. 124, 206 P. 816, 817; Fornarotto v. Board of Public Utilities Com'rs of New Jersey, 105 N.J.L. 28, 143 A. 450.
The testimony of two or three witnesses that one additional bus schedule will suit their own convenience better than the existing service does not constitute a grievance of the public or establish an inconvenience of the public. Seward v. Denver, & R. G. R. Co., 17 N.M. 557, 131 P. 980, 46 L.R.A.,N.S., 242; Denton Bros. v. Atchison, T & S. F. R. Co., 34 N.M. 53, 277 P. 34; Petition of Town of Grenville, 46 N.M. 3, 119 P.2d 632; Delaware L. & W. R. Co. v. Van Santwood, D.C., 216 F. 252.
Good cause and public interest are not established where the evidence establishes and the commission has found that the existing transportation facilities are adequate, and the people are adequately served. Malone v. Van Etten, 67 Idaho 294, 178 P.2d 382.
Maurice H. Greene and Raymond D. Givens, both of Boise, for respondent.
The requirement of proof under Section 59-804, Idaho Code Annotated, is "good cause" and "public interest" but not "convenience and necessity", In re Garrett Transfer & Storage Co., Inc., 53 Idaho 200, 23 P.2d 739; Malone v. Van Etten, 67 Idaho 294, 178 P.2d 382, and upon such a showing the Public Utilities Commission must issue a permit. In re Garrett Transfer & Storage Co., Inc., supra; Malone v. Van Etten, supra.
In determining whether "good cause" and "public interest" have been shown, the economic loss or gain of competing common carriers may not be considered by the Public Utilities Commission. Malone v. Van Etten, supra.
Where the legislature has desired that existent utilities be protected, it has required a showing of public convenience and necessity by applicants desiring to institute a competitive service. McFayden v. Public Utilities Consol. Corp., 50 Idaho 651, 299 P. 671; Sec. 59-526, Idaho Code Annotated.
Robert E. Smylie, Atty. Gen. and Don J. McClenahan, Asst. Atty. Gen., for Public Utilities Commission.
The commission was not at liberty to require the applicant to prove public "convenience and necessity," but could only require him to show "good cause and public interest." Malone v. Van Etten, 1947, 67 Idaho 294, 299, 178 P.2d 382, 384.
The commission had no duty to protect other common carriers competing in the open market in the same field. Malone v. Van Etten, supra, 67 Idaho 301, 178 P.2d p. 385.
If "good cause and public interest" are shown, the commission must issue its permit under the Auto Transportation Act. Malone v. Van Etten, supra, 67 Idaho 301, 178 P.2d p. 385.
And the commission may exercise its own judgment as to what constitutes fulfillment of the statutory requirement that the permit must issue "upon good cause shown." In re Garrett Transfer & Storage Co., (on rehearing), 1933, 53 Idaho 200, 208, 23 P.2d 739.
Miller, J., sat at the hearing but did not participate in the decision.
On or about October 16, 1947, applicant, A. C. Nichols, doing business as Valley Bus Line, hereinafter called respondent, filed an application with the Public Utilities Commission for a permit to operate as an auto transportation company in the transportation of passengers, express, mail and newspapers for hire between Ashton and Pocatello, Idaho. On or about October 25, 1947, Union Pacific Stages, hereinafter called appellant, filed a protest and petition in intervention, upon the ground, among others, that the public transportation needs and necessities were adequately served and that good cause and public interest did not exist for the granting of a permit. The Commission set the matter for hearing at Idaho Falls and hearing was had November 21, 1947, at which time testimony was adduced for and in behalf of respondent and appellant. Following the conclusion of the hearing the Commission took the matter under advisement and, March 8, 1948, made and entered its order granting the application and authorizing the issuance of a permit to respondent to operate passenger and express service between Pocatello and Ashton, Idaho, as a common carrier, as prayed for in the application. Appellant then filed its petition for rehearing which was, April 1, 1948, denied by the Commission. Union Pacific Stages appeals to this court from both the order granting respondent's application and from the order denying its petition for rehearing.
It appears respondent owns one 1946 sixteen-passenger Pony Cruiser, which he proposed to operate over U. S. Highways 91 and 191, under the following time schedule:
It also appears Union Pacific Stage is operating eight schedules each way per day, four of which schedules operate beyond Idaho Falls to and from St. Anthony, and three of which operate beyond Idaho Falls to and from Ashton, Idaho, such schedules being as follows:
8:35 AM
10:19 AM
10:50 AM
Run 751
9:30 AM
11:00 AM
Run 753
11:00 AM
12:30 PM
2:05 PM
Run 725
Run 723
6:09 PM
6:40 PM
Run 755
Run 727
6:20 PM
Run 728
7:00 AM
7:23 AM
8:55 AM
10:25 AM
Run 750
11:15 AM
12:45 PM
Run 732
11:45 AM
12:10 PM
2:00 PM
3:30 PM
Run 752
2:45 PM
4:15 PM
Run 722
4:00 PM
5:30 PM
7:00 PM
Run 754
8:00 PM
Run 734
7:15 PM
7:38 PM
9:20 PM
It further appears such schedules serve the intermediate points between Pocatello, St. Anthony and Ashton and handle passengers, baggage, express and newspapers, and that all of the buses have a capacity of 37 passengers except Runs 750 and 751 which have a capacity of 29.
That in addition to the aforesaid service, the Union Pacific Railroad Company operates two daily passenger trains each way between Pocatello and Idaho Falls as follows:
Lv. Pocatello
1:40 AM
Ar. Idaho Falls
3:15 AM
Lv. Pocatello
5:40 AM
Ar. Idaho Falls
7:25 AM
and Southbound:
Lv. Idaho Falls
Ar. Pocatello
Ar. Pocatello
Trains 45 and 46 connect at Idaho Falls with Trains 33 and 34, respectively, all of which trains carry passengers, baggage, express, mail and newspapers, serving all intermediate points and paralleling U. S. Highways 91 and 191.
It further appears the Teton Stage Line operates a schedule each way per day between Sugar City, Idaho, and Idaho Falls, Idaho, as follows:
"Southbound
Lvs. Sugar City
10:40 AM
Arr. Idaho Falls
Northbound
Lvs. Idaho Falls
5:00 PM
Arr. Sugar City
6:00 PM"
In addition there are two airplane express companies operating between Pocatello and Idaho Falls.
At the hearing Mrs. M. L. Wirt, Glenn A. Harvey, Duan Seeley Stanley Clark and LaVon F. Merrill testified in behalf of applicant in support of the application. Mrs. Wirt testified on direct examination that she rode the Union Pacific bus from Shelley to Idaho Falls about once a month; that Christmas morning 1946 the bus failed to pick her up when she was a short distance from the bus depot; that she waited and some one came along and gave her a ride; that sometimes the buses were crowded; that she believed she would be benefited by the proposed schedule; for that reason she wished additional bus service. On cross-examination she testified that the proposed Nichols schedule would not have assisted her on the Christmas morning she testified about; that she thought schedules should be arranged to meet the requirements of the general public; that if she went to Idaho Falls and wanted to return to Shelley the same day, she wouldn't be able to return on the Nichols bus because it wouldn't be coming back until the next morning.
Glenn A. Harvey testified on direct examination he lived at Basalt about fifteen miles south of Idaho Falls; that he daily traveled from Basalt to Idaho Falls; that he went up in the morning and returned home at night; that he had been working in Idaho Falls since May 15, 1947; that the morning bus between Shelley and Idaho Falls was crowded every day so he had to stand up unless there was a second section that second sections were occasionally operated;...
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