Mayor and Council of Crisfield v. Public Service Commission

• Citation: 36 A.2d 705,183 Md. 179
• Decision Date: 23 March 1944
• Docket Number: 23.
• Parties: MAYOR AND COUNCIL OF CRISFIELD v. PUBLIC SERVICE COMMISSION et al.
• Court: Court of Appeals of Maryland

36 A.2d 705

183 Md. 179

MAYOR AND COUNCIL OF CRISFIELD v. PUBLIC SERVICE COMMISSION et al.

No. 23.

Court of Appeals of Maryland

March 23, 1944

Appeal from Circuit Court, Somerset County; Levin C. Bailey, Chief Judge.

Proceedings by the Mayor and Council of Crisfield against the Public Service Commission of Maryland and the Eastern Shore Public Service Company of Maryland to reverse an order of the Commission refusing to issue a certificate of authority to petitioner to construct an electric light and power system for municipal and other purposes. From a decree affirming the commission's order and dismissing the petition petitioner appeals.

Decree affirmed.

Town officials had burden of establishing, by clear and satisfactory evidence, that Public Service Commission's order refusing town's application for authority to construct and maintain municipal electric light and power plant was unreasonable or unlawful. Code 1939, art. 23, § 419.

H. Warren Buckler, Jr., of Baltimore (Niles, Barton Morrow & Yost, of Baltimore, on the brief), for appellants.

Joseph Sherbow, of Baltimore, for appellee Public Service Commission of Maryland.

F. W C. Webb, of Salisbury (Woodcock, Webb, Bounds & Travers, of Salisbury, on the brief), for appellee Eastern Shore Public Service Co. of Md.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, and MELVIN, JJ.

MELVIN Judge.

On December 26, 1941, the Mayor and Council of Crisfield, a municipal corporation, applied to the Public Service Commission of Maryland for a certificate of authority to construct an electric light and power system for municipal and other purposes, under the provisions of Chapter 930 of the Acts of 1941. The Eastern Shore Public Service Company of Maryland, a corporation, hereinafter called 'Eastern Shore', which was then, and is now, supplying Crisfield and environs with electricity, intervened in the proceedings and protested the granting of the application. After full and extended hearings, and the taking of voluminous testimony, the Commission refused to issue the certificate of authority and the Mayor and Council of Crisfield, thereupon, filed its petition to the Circuit Court for Somerset County seeking the reversal of this order, under the provisions of Section 415 of Article 23 of the Code (1939 Ed.), as to procedure. Potomac Ed. Co. v. Public Service Comm., 165 Md. 462, 169 A. 480. The case was submitted to the Court on said petition and the answers of the Commission and 'Eastern Shore', respectively, together with a transcript of the record which was before the Commission. No additional testimony was sought to be introduced by the petitioner, although it, exclusively, had a right to do so. Code, Art. 23, Sec. 416. The Court's conclusion was to affirm the Commission's order and to dismiss the petition, and it was so decreed. From this decree the present appeal was taken.

The record discloses that this is a case of a municipality seeking to enter a field of utility operations already completely occupied by a private enterprise which is, admittedly, rendering to the residents of that municipality (Crisfield) 'reasonably adequate, efficient and dependable electric light and power service.' That is what the Commission found as a matter of fact, and the appellant in its petition to the Court admits it to be 'substantially a true statement.' It happens, also, to conform verbatim to the special purpose for which the statute in question was enacted, as expressed in the first section of the sub-title (116A).

However, the theory advanced by appellant in support of its position in the case is that this private corporation ('Eastern Shore') is without any franchise at all in Crisfield, it being contended that the only one it had expired on May 9, 1942, and that, therefore, it is not a question here of introducing competition in that particular area, which it is conceded would be unjustified, but of substituting municipal ownership and operation for that of the private enterprise whose rights have terminated.

By way of emphasizing this issue as the controlling one, the appellant, through its counsel, has declared at each stage of this litigation that it will withdraw its application and abandon the project in question unless it can operate exclusively in this field; so that if the Court should determine that the utility company presently serving Crisfield ('Eastern Shore') is there under a valid 'perpetual' franchise, the city will withdraw, even though the franchise is, undeniably, not exclusive. This forthright attitude serves to identify at once the basic point of this appeal and to bring the Court directly to the consideration of it.

In reviewing the record we are confronted at the outset by the provisions of two statutes which are of special significance and applicability, being in the nature of guide posts showing the limitations upon the Court's jurisdiction in this particular kind of a case. The first in Section 116U of the Act of 1941 (Chapter 930) which, coming after the sections granting certain powers to the Mayor and Council of Crisfield, states, in effect, that the whole act is a nullity without the permission and approval of the Public Service Commission being first obtained and unless and until a certificate of authority is duly granted by said Commission. The exact wording of the statute is: '116U. None of the powers granted by Section 116A to 116X of this sub-title shall be exercised by the Mayor and Council without the permission and approval of the Public Service Commission of Maryland first had and obtained and unless and until a certificate of authority is duly granted by said Commission to construct and maintain and operate said municipal electric light and power system and issue said revenue notes, bonds or certificates, as provided in Section 401 of Article 23 of the Code of Public General Laws of Maryland, 1939 Edition.'

This section (401) lays double emphasis on the necessity of obtaining a certificate of authority from the Public Service Commission and on this point provides that: 'No municipality, except the Mayor and City Council of Baltimore, shall build, maintain and operate for other than municipal purposes any works or systems for the manufacture and supplying of gas or electricity for lighting purposes without a certificate of authority granted by the Commission.'

There is thus made manifest the legislative intent to clothe the Public Service Commission with supreme authority in such a matter, subject, only, to the condition that its orders must be both reasonable and lawful, as hereinafter more fully noted.

The second statute above referred to shows how strongly the presumptions are in favor of the Commission's orders whenever the court's review of any of them is sought. This is Section 419, Art. 23, Code (1939 Ed.), which provides: 'In all trials, actions and proceedings arising under the provisions of this sub-title, growing out of the exercise of the authority and powers granted herein to the commission, the burden of proof shall be upon the party adverse to such commission, or seeking to set aside any determination, requirement, direction or order of said commission, to show by clear and satisfactory evidence that the determination, requirement, direction or order of the commission complained of is unreasonable or unlawful, as the case may be.'

With these statutes of primary importance before us, the question which arises for the Court's decision is whether or not the appellant on this record has shown by clear and satisfactory evidence that the order appealed from is either unreasonable or unlawful.

The order, itself, is based upon three findings which are expressly made a part of it. These are:

'(1) Protestant ('Eastern Shore') has a perpetual franchise to render electric service in Crisfield;

'(2) The residents of Crisfield are now receiving reasonably adequate, efficient and dependable electric light and power service;

'(3) Public necessity and convenience require that the application of the Mayor and Council of Crisfield be disapproved.'

Findings numbered (2) and (3), being purely of fact, may be disposed of without the necessity of extended comment, for the decision as to them is entirely free from difficulty. It is sufficient to say that the Court will not substitute its own judgment for that of the Public Service Commission where the record shows substantial evidence to support the latter's findings of fact, and, moreover, will not examine into the facts any further than to ascertain this result. The presumption of reasonableness is just that strong. This rule of law, as embodied in the statute, has become a legislative mandate designed to protect both the courts and the administrative tribunal from encroachment on their respective provinces, and to promote co-ordination between when questions of law and of fact arise in any case. As a fact-finding body, representing the State in the supervision and control of public utilities corporations, the Public Service Commission has been provided by the Legislature with a staff of trained assistants and specialists for the very purpose of furnishing a sound foundation of facts for every finding by the Commission. The Courts have no such facilities or equipment to function in this field of governmental control over public utilities, and will not disturb the Commission's findings where there appears substantial evidence to support them. Public Service Commission v. Byron, 153 Md. 464, 471, 138 A. 404; Baldwin v. Public Service Comm., 160 Md. 202, 152 A. 907; Public Service Comm. v. Williams, 167 Md. 316, 173 A. 259.

In the case at bar not only is there substantial evidence to support the Commission's findings of fact, but the correctness of...