Oahu Terminal Services, Inc., Application of, C-10

• Court: Supreme Court of Hawai'i
• Citation: 473 P.2d 573,52 Haw. 221
• Docket Number: C-10,No. 4866,C-11,RLH,4866
• Parties: Application of OAHU TERMINAL SERVICES, INC., for a Motor Carrier Certificate or Permit Pursuant to Sections 106or 1061955, as amended.
• Decision Date: 05 August 1970

Page 573

473 P.2d 573

52 Haw. 221

Application of OAHU TERMINAL SERVICES, INC., for a Motor

Carrier Certificate or Permit Pursuant to Sections

106C-10 or 106C-11, RLH 1955, as amended.

No. 4866.

Supreme Court of Hawai'i.

Aug. 5, 1970.

Syllabus by the Court

1. Where officials of an administrative agency who are to render final decision in a contested case have not heard and examined all of the evidence, HRS § 91-11 mandates that the decision, if adverse to a party other than the agency itself, shall not be made until a proposal for dicision has been served upon such party and an opportunity has been afforded him to file exceptions and present argument to the decision-making officials.

2. An order of an administrative agency must conform to the decision as reflected in the agency minutes.

Jack H. Mizuha, Honolulu, for appellants.

Roy M. Miyamoto, Deputy Atty. Gen. (Bertram T. Kanbara, Atty. Gen., on the brief), for appellee Public Utilities Commission.

Ernest A. Ito, Honolulu (Chee, Hashimoto, Lee & Oshiro, Honolulu, of counsel), for appellee Oahu Terminal Services, Inc.

Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and Circuit Judge HAWKINS in place of KOBAYASHI, J., disqualified.

MARUMOTO, Justice.

Oahu Terminal Services, Inc., applied to the Public Utilities Commission, hereafter referred to as commission, for a permit to operate as a contract carrier to provide one motor coach and driver to Oahu Highlite Tours, Inc., for its daily narrated tour to the evening show at the Polynesian Cultural Center. Five certificated common carriers were allowed to intervene in the proceeding protesting the granting of the permit.

Hearings on the application were held before two of the five members of the commission. Subsequently, the commission approved the application. One of the two members who actually heard the evidence did not participate in the decision and when informed of the decision filed a dissenting opinion.

The intervenors have appealed here raising five claims of error. Only two merit discussion.

The commission entered its decision approving the application of Oahu Terminal Services, Inc., without sending a proposed decision to the intervenors, even though only two members actually attended the hearings and heard the evidence. This is a clear violation of HRS § 91-11.

HRS § 91-11 is a section of the Hawaii Administrative Procedure Act, enacted in 1961, and is a revision of the corresponding section of the Revised Model State Administrative Procedure Act approved by the National Conference of Commissioners on Uniform State Laws. It reads:

' § 91-11. Examination of evidence by agency. Whenever in a contested case the officials of the agency who are to render the final decision have not heard and examined all of the evidence, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision containing a statement or reasons and including determination of each issue of fact or law necessary to the proposed decision has been served upon the parties, and an opportunity has been afforded to each party adversely affected to file exceptions and present argument to the officials who are to render the decision, who shall personally consider the whole record or such portions thereof as may be cited by the parties.'

The legislative...