New England Household Moving & Storage, Inc. v. Public Utilities Commission

• Decision Date: 30 December 1977
• Docket Number: No. 7781,7781
• Citation: 117 N.H. 1038,381 A.2d 745
• Parties: NEW ENGLAND HOUSEHOLD MOVING & STORAGE, INC. v. PUBLIC UTILITIES COMMISSION the State of New Hampshire.
• Court: New Hampshire Supreme Court

Page 745

381 A.2d 745

117 N.H. 1038

NEW ENGLAND HOUSEHOLD MOVING & STORAGE, INC. v. PUBLIC UTILITIES COMMISSION the State of New Hampshire.

No. 7781.

Supreme Court of New Hampshire.

Dec. 30, 1977.

McLane, Graf, Greene, Raulerson & Middleton Professional Association, Manchester and Robert E. Jauron (Charles A. DeGrandpre, Manchester, orally), for New England Household Moving & Storage, Inc.

David H. Souter, Atty. Gen. and Deborah J. Cooper, Concord, atty. (Cooper, orally), for the State.

DOUGLAS, Justice.

This case is an appeal from a decision of the public utilities commission denying New England Household Moving & Storage, Inc. a certificate to operate as a motor vehicle carrier of household goods, pursuant to RSA ch. 375-A. After a hearing the certificate was denied because of applicant's failure to prove that the proposed service is or will be required by the "public convenience and necessity." Applicant filed a motion for rehearing which was denied by the commission, and the current appeal was then brought pursuant to RSA 541:6.

Applicant is a Delaware corporation authorized by the Interstate Commerce Commission to operate as an interstate mover of household goods, and also operates within the state of Massachusetts under authority conferred by the Massachusetts Department of Public Utilities. Pursuant to its interstate authority applicant maintains a terminal in Nashua, New Hampshire, and in its application to the commission seeks authority to operate intrastate between points in New Hampshire.

At the commission hearing applicant introduced evidence of the vehicles and equipment it owns, a group of quality control forms for its interstate business, a record of telephone inquiries regarding its services, letters of support from interstate patrons, and a growth study for the three counties in which applicant seeks primary authority to operate. John P. Kelly, president of New England Household, and Joseph Milne, a planning consultant, also testified in support of the application. The protestants to New England Household's application offered no evidence, but submitted a motion to the commission alleging that applicant had failed to sustain its burden of proving that the public convenience and necessity required granting the certificate. This motion was granted by the commission and applicant accordingly was denied a certificate.

At the outset we are presented with a question concerning the standard of review to be applied to the commission's decision. The state has argued that RSA 541:6 does not provide an appeal from the commission's decision, and that applicant's petition should therefore be treated as one for a writ of certiorari, restricting our review "to the limited determination of whether the commission in question acted 'illegally in respect to jurisdiction, authority or observance of law.' " Connell's New and Used Cars v. State, 117 N.H. ---, 375 A.2d 257, 258 (decided June 20, 1977). We disagree. It is true that RSA ch. 541 does not provide a method of appeal from the determination of every administrative agency, but only where an appeal is specifically "authorized by law." RSA 541:2; see Connell's New and Used Cars v. State, supra at ---, 375 A.2d at 257-58; Wilson v. Personnel Commission, 117 N.H. ---, 378 A.2d 1375 (1977). We find such a specific authorization, however, in RSA 365:21, which provides that "(t)he procedure for rehearings and appeals (from the Public Utilities Commission) should be that prescribed by chapter 541 . . . ." Pursuant to this provision applicant properly appealed to this court, see Household Goods Carriers Assn. v. Ouellette, 107 N.H. 199, 219 A.2d 699 (1966); White Mountain Power Co. v. Whitaker, 106 N.H. 436, 213 A.2d 800 (1965); Welch Co. v. State, 89 N.H. 428, 199 A. 886 (1938), and therefore the standard to be applied in reviewing the commission's decision is that prescribed by RSA 541:13.

New England Household seeks to have the commission's decision set aside on the grounds that the commission erroneously required the applicant to prove that the services of existing household movers were inadequate in order to meet its burden of proof that the public convenience and necessity requires the granting of a certificate. While conceding that the inadequacy of existing services might be a proper subject for commission inquiry, applicant argues that it is error to make it a prerequisite to a finding that the public convenience and necessity requires granting a certificate.

RSA 375-A:3, which governs the granting of authority to operate as a household goods carrier within New Hampshire, does not specify the criteria the commission should employ in determining whether the proposed services are or will be required by the public convenience and necessity. This court, however, has recognized that the adequacy of existing services is merely a factor to be considered. Household Goods Carriers Assn. v. Ouelette, supra, 107 N.H. at 201, 219 A.2d at 700.

It was error to require the applicant to prove the inadequacy of existing carrier service as a prerequisite to meeting its burden of proof on the question of public convenience and necessity. Other factors, including the desirability of additional competition, may warrant a finding that the additional sentence is required by the public convenience and necessity, although existing carriers can adequately fulfill present and future need. See Nashua Motor v. U. S., 230 F.Supp. 646, 652-53 (D.N.H.1964) (construing an almost identical provision of the Interstate Commerce Act); Schaffer v. U. S., 355 U.S. 83, 90-91, 78 S.Ct. 173, 2 L.Ed.2d 117 (1957) (same); U. S. v. Detroit & Cleveland, 326 U.S. 236, 240-41, 66 S.Ct. 75, 90 L.Ed. 38 (1945) (same); Union Mechling v. U. S., 390 F.Supp. 391, 403, 405 (W.D.Pa.1974) (same). We therefore hold that "the absence of a finding of inadequacy (of existing carrier services) is not alone...