Kisner v. Public Service Commission

Decision Date09 October 1979
Docket NumberNo. 14469,14469
Citation163 W.Va. 565,258 S.E.2d 586
PartiesM. Glenville KISNER v. The PUBLIC SERVICE COMMISSION of West Virginia.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. "The Due Process Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards against State action which affects a liberty or property interest." Syl. pt. 1, Waite v. Civil Service Commission, W.Va., 241 S.E.2d 164 (1978).

2. Under the principles of procedural due process a certificate of convenience and necessity issued without limitation as to the number of vehicles confers such a significant property interest as to require the State to afford the holder of such certificate a hearing before it undertakes to limit the certificate by restricting it to one vehicle.

Rice, Hannis & Douglas, Richard L. Douglas, Martinsburg, for appellant.

Frank Crabtree, Legal Div. Public Service Commission, Charleston, for appellee.

PER CURIAM:

In this appeal we are asked to determine whether the Public Service Commission erred in reducing the number of vehicles which the appellant, M. Glenville Kisner, was authorized to operate under his certificate of convenience and necessity.

On May 10, 1978, the appellant, who had never operated under Public Service Commission authority, applied for a certificate of convenience and necessity to operate in Berkeley County as a common carrier by motor vehicle of stone, sand, corn, manure, and various other materials.

At a hearing conducted on the appellant's application on July 28, 1978, three witnesses appeared on behalf of the appellant, and one witness appeared on behalf of various protestants. The appellant testified that there was much construction in progress in Berkeley County, that there were approximately fifty construction people and only fifteen trucks to supply their needs. He assessed the trucking situation as being very poor. Kathryn Myers, the secretary of a paving concern, testified that her outfit had had difficulty getting trucks when needed. John J. Negley, who worked for a construction company, expressed the opinion that the trucking services in Berkeley County were inadequate. Not one of the three witnesses who testified on behalf of the appellant expressed an opinion as to how many additional trucks might be necessary to correct the deficiencies in service. The witness who testified on behalf of the protestants, George Spencer, a trucker, stated that there were sixteen trucks in Berkeley County and that he had access to additional trucks if the need for them arose. Spencer testified that the existing fleet was often idle, and the clear purport of his testimony was that no additional trucks were needed in Berkeley County.

At the conclusion of the hearing, the Public Service Commission issued Motor Carrier Certificate No. F-5998 to the appellant. The certificate stated in part:

"IT IS, THEREFORE, ORDERED that there be, and there hereby is, issued unto the applicant, M. Glenville Kisner, a certificate of convenience and necessity, designated P.S.C. M.C. Certificate No. F-5998, to operate as a common carrier by motor vehicle in the transportation of stone, dirt, aggregate, asphalt, ash, gravel, shale, fill dirt, top soil, sand, rock and other road building and construction materials in Berkeley County, and between points and places in said county on the one hand and points and places in West Virginia on the other."

The certificate placed no limit on the number of vehicles which the appellant might operate.

After the issuance of the certificate to the appellant, the protestants petitioned the Public Service Commission to reconsider its action. In their petition that alleged, among other points, that the Commission had erred in failing to limit the number of vehicles which the appellant might operate, and by so failing to limit the number of vehicles the Commission had entered an order which was contrary to the evidence contained in the record of the case.

Without conducting additional hearings the Public Service Commission, on November 1, 1978, found that:

"The findings by the Commissioner in this case clearly indicate that the applicant proposed to operate a 1973 Chevrolet bi-axle dump truck if authority was granted. However, as intervenors' petition correctly observes, the authority granted to the petitioner by the ordering clause is not limited in respect to the number of vehicles which the applicant may operate thereunder. The record in this case does not support the granting of authority to the applicant to operate more than one motor vehicle."

At the same time, the Commission entered an order saying:

"IT IS, THEREFORE ORDERED that P.S.C. M.C. Certificate No. F-5998 be, and it hereby is, amended to authorize the holder, M. Glenville Kisner, to operate one dump truck as a common carrier by motor vehicle in the transportation of stone, dirt, aggregate, asphalt, ash, gravel, shale, fill dirt, top soil, sand, rock and other road building and construction materials in Berkeley County, and between points and places in said county on the one hand and points and places in West Virginia on the other."

From this ruling the appellant now appeals contending that the portion of the ruling limiting him to the operation of only one motor vehicle is contrary to the law and the evidence.

A careful examination of the...

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7 cases
  • Freeman v. Poling
    • United States
    • West Virginia Supreme Court
    • 20 de dezembro de 1985
    ...rise to a due process property interest such that they, at least, are entitled to a hearing. They rely on Kisner v. Public Service Comm'n, 163 W.Va. 565, 258 S.E.2d 586 (1979), where this Court found the Public Service Commission deprived an individual of a property interest when it revoked......
  • Barron v. Board of Trustees of Policemen's Pension & Relief Fund
    • United States
    • West Virginia Supreme Court
    • 21 de novembro de 1985
    ...existing rules or understandings." See also Major v. DeFrench, 169 W.Va. 241, 286 S.E.2d 688 (1982); Kisner v. Public Serv. Comm'n, 163 W.Va. 565, 569-70, 258 S.E.2d 586, 588-89 (1979); State ex rel. McLendon v. Morton, 162 W.Va. 431, 249 S.E.2d 919 (1978); North v. West Virginia Bd. of Reg......
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    • 19 de novembro de 2020
    ... ... (2) is satisfied and, within the period provided by Rule 4(k) for service of the summons and complaint, the party to be brought in by amendment (A) ... ...
  • Major v. DeFrench
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    • 4 de fevereiro de 1982
    ...of Law Examiners, W.Va. 266 S.E.2d 444 (1980) (Board could not arbitrarily refuse to process bar applications); Kisner v. Public Service District, W.Va. 258 S.E.2d 586 (1979) (PSC could not reduce number of vehicles that common carrier permitted to operate without hearing). The due process ......
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