Mulcahy v. Public Serv. Comm.

• Decision Date: 26 September 1941
• Docket Number: 6282
• Citation: 101 Utah 245,117 P.2d 298
• Court: Utah Supreme Court
• Parties: Mulcahy Et Al. v. Public Service Commission Et Al.

117 P.2d 298

101 Utah 245

Mulcahy Et Al. v. Public Service Commission Et Al.

No. 6282

Supreme Court of Utah

September 26, 1941

Original Statutory Proceedings By P H Mulcahy, Receiver of The Utah Idaho Central Railroad Company, And Others, Against The Public Service Commission of Utah And Others For Review By The Supreme Court of Proceedings And Orders of The Public Service Commission Granting To Defendant Fuller-Toponce Truck Company A Certificate of Convenience And Necessity To Operate As A Common Motor Carrier of Property Between Salt Lake City And Logan, Utah

Order of the commission affirmed.

S. J Quinney, Irvine, Skeen, Thurman & Miner, Geo. H. Smith, R. B Porter, and W. Hal Farr, all of Salt Lake City, and J. A Howell, of Ogden, for plaintiffs. J. Allan Crockett, of Salt Lake City, Joseph Chez, Atty. Gen., Rulon S. Howells, Deputy Atty. Gen., and Geo. H. Lowe and Ira A. Huggins, both of Ogden, for defendants.

LARSON Justice.

A statutory proceeding for review by this court of the proceedings and orders of the Public Service Commission of Utah granting to the Fuller-Toponce Truck Company a certificate of convenience and necessity to operate as a common motor carrier of property between Salt Lake City and Logan, Utah. The plaintiffs, railroad corporations, operating through the same territory protested the application of the Fuller-Toponce Company, and bring the matter here for review. The Union Pacific Railroad Company operates an interstate rail transportation system, whose line serves in a general way much of the territory involved in the application of the Fuller-Toponce Company. The Bamberger Railroad Company and the Bamberger Transportation Company, an affiliate, operate motor trucks between Salt Lake City and Ogden as common carriers of property. The Utah Idaho Central Railroad Company, and its successor, the Utah Idaho Central Railroad Corporation, operate an electric railroad between Ogden, Utah and Preston, Idaho. The Bamberger System and the Utah Idaho Central System have an integrated service through the territory from Salt Lake City to Logan. Hereafter the applicant for the certificate, the Fuller-Toponce Truck Company, will be referred to as the Truck Company, and the protestants, plaintiffs here, will be referred to as the Railroads. The Truck Company began operations as a contract motor carrier between Salt Lake City and Ogden and points in Box Elder and Cache Counties, and in the State of Idaho. In 1936 it applied for a certificate of convenience and necessity to serve as a common motor carrier over substantially the same territory included in the present application. The Public Service Commission granted the application in 1936, and then upon rehearing in 1937 denied the major portion of the request, but granted a certificate to operate as a common carrier between Salt Lake City and Ogden on the one end, and Perry, Mantua, and College Ward in Cache County on the other end.

The order recited that should the Truck Company appeal from the order modifying the certificate previously issued to it, the effective date of the modification order was to be stayed until after the court rendered its decision on review. The Truck Company therefore operated as a common carrier over the territory involved in the 1936 application and certificate until the decision of this court affirming the Commission's action modifying the certificate was rendered, December 5, 1939. Fuller-Toponce Truck Company v. Public Service Commission, 99 Utah 28, 96 P.2d 722. While that matter was pending in this court on October 13, 1939, substantially eight weeks before the court rendered its opinion, the Truck Company filed with the Commission a new application for a certificate of convenience and necessity as a common motor carrier, covering with a few minor additions the same territory involved in the 1936 application. Upon hearing the Commission found convenience and necessity for the motor carrier service and granted to the Truck Company a certificate to operate as applied for, with the exceptions that it denied the principal parts of the additions to the former application of 1936, that is, it now granted a certificate to render substantially the same service it had denied on the prior application of 1936. The Railroads seek review by this court.

It is urged that the Commission did not regularly pursue its authority, and that it acted arbitrarily in granting the certificate and issuing its order therefor because:

(a) There is no evidence showing or tending to show convenience and necessity.

(b) The uncontradicted evidence shows the granting of the certificate will be detrimental to the best interests of the people and localities to be served.

(c) There is no evidence of any change in conditions since the hearing on and denial of the 1936 application, and therefore that determination is res adjudicata of the issue here involved.

(d) That if more or new transportation service is needed, the Commission is by law bound to give existing carriers an opportunity to render the service before permitting a new carrier or competitor to enter the field.

(e) The Commission erroneously interpreted and applied the law in holding it was "required by law to grant this application if it found that the granting is not detrimental to the best interests of the public," whereas it is "only authorized to grant the application when it finds the granting thereof is to the best interests of the public."

(f) The Commission exceeded its authority in holding that because the Truck Company had been operating for three years under a certificate the Commission had issued and vacating on rehearing, such operation and business placed the applicant in an advantageous position over the Railroads on the hearing before the Commission.

Our power of review is limited to questions as to whether the Commission in the exercise of its authority proceeded in the manner required by law, and whether the findings of the Commission are justified by the evidence. Section 76--6--16, R. S. U. 1933. 57 C. J. 82. From this point of view we have read and examined the record, and given careful consideration to the splendid and elaborate briefs of counsel. We note the points urged by plaintiffs.

Is the finding that public convenience and necessity will best be subserved by permitting the Truck Company to operate under the certificate as awarded to it, justified by the evidence? It is not required that the facts found by the Commission be conclusively established, nor even that they be shown by a preponderance of the evidence. If there is in the record competent evidence from which a reasonable mind could believe or conclude that a certain fact existed, a finding of such fact finds justification in the evidence, and we can not disturb it. Fuller-Toponce Company v. Public Service Commission, 99 Utah 28, 96 P.2d 722. It has been repeatedly held that a review of the Commission's order is limited to a determination of whether the Commission acted within the scope of its authority, whether the order has any substantial foundation in the evidence, and whether any substantial right has been infringed by such order. We are reviewing the action of an executive body, executing and carrying out the provisions of the law, the mandates of the statute, and ever since Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, it has been recognized that one department of the government cannot control the judgment or official acts of another department, acting within its proper sphere of governmental power, within the scope of its authority. Issuing a certificate of convenience and necessity is an act of the executive department of state government, and when done pursuant to law is not subject to judicial annulment. But an act which is not within the scope and duty of executive power, even though and when attempted or performed by an executive body, may be annulled or prohibited by the judicial branch. For the executive bodies, like the individual persons making up the sovereign people can lawfully exercise only the rights and powers recognized by law as existing in them. There is vested in the Public Service Commission, by the law of its creation and existence, the right and power to issue certificates of convenience and necessity for motor transport service as common carriers when it "finds from the evidence that the public convenience and necessity require the proposed service." Chapter 65, Section 6, Laws of Utah 1935. What policy should be pursued, or what conclusions should be drawn from disputed facts is not a law question for the judiciary to decide. Such questions must be determined by the person or body whose action depends upon the determination thereof. But the question as to whether there is competent evidence to justify the action taken, or to be taken, is a legal question, because the official body is authorized to act only according to law, that is, upon competent evidence. An attempt therefore to act upon a matter without any competent evidence to sustain it is not done according to law, and therefore is not done in the pursuit of lawful authority.

It is argued that the evidence does not justify a finding of public convenience and necessity, but at most only the convenience of individual shippers. There can be no fast rule or clear line of demarcation between the convenience and necessity of individuals and the convenience and necessity of the public, because after all the public is made up of a collection of individuals. But a thing may be a convenience or a necessity for many individuals and yet not be a public convenience or necessity. The "convenience" and "necessity" required to support an application for a certificate are those of the public, not those of individuals. O'-...