Mountain Trucking Co. v. Public Service Commission, 13271

• Decision Date: 01 July 1975
• Docket Number: No. 13271,13271
• Citation: 216 S.E.2d 566,158 W.Va. 958
• Court: West Virginia Supreme Court
• Parties: MOUNTAIN TRUCKING COMPANY, a corporation v. PUBLIC SERVICE COMMISSION of West Virginia, B & H Trucking Company, a corporation, et al.

Page 566

216 S.E.2d 566

158 W.Va. 958

MOUNTAIN TRUCKING COMPANY, a corporation v. PUBLIC SERVICE COMMISSION of West Virginia, B & H Trucking Company, a corporation, et al.

No. 13271.

Supreme Court of Appeals of West Virginia.

July 1, 1975.

Syllabus by the Court

1. 'An applicant for a permit to operate in this state as a contract carrier as provided in Code, 1931, 24A--3--3(a), as amended, must establish to the satisfaction of the Public Service Commission, Inter alia, that the privilege sought will not impair the efficient public service of any authorized common carrier or common carriers adequately serving the same territory and this is especially applicable when a protest to the application is received by the commission from a common carrier serving the same territory.' Syllabus point 1., Mountain Trucking Company v. Daniels, W.Va., 197 S.E.2d 819 (1973).

2. An order of the Public Service Commission granting authority to operate as a contract carrier will be reversed, as being clearly wrong, where the applicant for such authority fails to sustain the burden of proof required by W.Va.Code 1931, 24A--3--3, as amended.

3. Where an administrative agency is required to find facts or state reasons as a basis for its order, the order must contain findings of facts, rather than conclusory statements, so as to withstand judicial scrutiny.

Hanna & Ross, Homer W. Hanna, Jr., and Alexander J. Ross, Charleston, for petitioner.

Maynard D. McDonnell, Legal Div., PSC, Charleston, for respondent (PSC).

HADEN, Chief Justice:

This is an appeal from an order of the Public Service Commission of West Virginia pursuant to a hearing on an application for a contract carrier permit. By the provisions of the order, B & H Trucking Company was granted a permit to operate ten motor vehicles as a contract carrier in the transportation of road building materials in Kanawha, Boone and Fayette Counties under contract with Central Appalachian Coal Company, a subsidiary of Appalachian Power Company.

The appeal is prosecuted by Mountain Trucking Company, a corporation, who appeared along with S. S. 'Joe' Burford Company, a corporation, at the hearing as protestants opposing the grant of a contract carrier permit to B & H Trucking Company. Both protestants are common carriers operating under certificates of convenience and necessity issued by lawful orders of the Public Service Commission. Each has authority under these certificates to haul road building material in the area covered by the contract carrier permit issued to B & H.

At the hearing before the Commission, Harlow McHenry, President of B & H Trucking Company, testified that he had merely an 'E' license which permitted the hauling of coal only from mining operations to loading facilities; that he had ten trucks, four of which he used to haul coal for Central Appalachian Coal Company; that he was contacted by Central for the purpose of hauling road building materials (i.e. stone, red dog, coal, sawdust, etc.) in Kanawha, Boone and Fayette Counties; and that he planned, should his application be granted, to use four trucks for the road building materials.

Thomas Dearnell, outside superintendent for Central, testified that Central wanted the applicant to transport road building materials for them, because B & H was available at a moment's notice since it was already hauling coal for them. He explained that occasionally emergency situations arise in which Central needs an immediate supply of coal; however, he mentioned no such emergencies with respect to road building materials. He stated that on five different occasions he had asked Burford to sell and deliver stone to Central, but that on each occasion, Burford had no stone to sell. He admitted, however, that Central had not asked the protesting carriers to render the services of Hauling road building materials. Furthermore, he made no claim whatsoever that the protestants were furnishing inadequate service in the area.

S. Franklin Burford, Vice President of S. S. 'Joe' Burford, Inc., and William T. Jones, Vice President of Mountain Trucking Company, appellant, appeared to protest the issuance of the permit. Burford testified that over the years his company had sold and delivered road materials to Central, until its supply had run out, but that he had never been requested by Central to deliver road materials as a common carrier. He stated that his company, which maintains a fleet of twenty-eight trucks, has trucks available to serve Central, and that, in fact, many trucks were idle over the previous winter.

Mr. Jones then testified that Mountain Trucking Company had twenty-two trucks operating under its common carrier authority and that it would be willing, if requested, to haul any low-grade commodities for Central. Although admitting that he guarantees his drivers daily work throughout the year, he asserted that he was capable of supplying emergency services to Central if necessary. He also maintained that the granting of a permit to B & H would have a detrimental effect on his company's business.

Upon the evidence presented at the hearing, the Commission, in its order, found that B & H Trucking Company was entitled to the contract carrier permit which it sought.

Mountain Trucking Company contends that the Commission's order is erroneous for several reasons: (1) because it violated W.Va.Code 1931, 24A--3--3...