Odle v. Public Service Commission of Indiana
| Decision Date | 27 June 1973 |
| Docket Number | No. 2--972A64,2--972A64 |
| Citation | 156 Ind.App. 538,297 N.E.2d 453 |
| Parties | Marilyn J. ODLE d/b/a Bud's Wrecker Service, Appellant, (Applicant Below), v. PUBLIC SERVICE COMMISSION OF INDIANA, Appellee. |
| Court | Indiana Appellate Court |
Marshall E. Williams, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Indianapolis, for appellee.
Review is sought by Marilyn J. Odle, d/b/a Bud's Wrecker Service (Bud) from denial by the Public Service Commission (the Commission) of her application for a Certificate of Public Convenience and Necessity to operate a wrecker and towing service of disabled vehicles.
We affirm.
The facts and evidence most favorable to the Commission are:
On April 5, 1971, Bud applied to the Commission for a Certificate of Public Convenience and Necessity to operate as a common carrier by motor vehicle over irregular routes transporting 'wrecked or disabled vehicles by wrecker truck-away or two truck service between all points and places in the State of Indiana.'
Of the various types of intrastate service rendered by towing service common carriers, Bud only sought a Certificate which would allow towing of disabled vehicles from the temporary depot to which they had been initially moved in the emergency move to the terminal of the ower of the disabled truck. Bud already held a Certificate for the movement necessary to bring a replacement vehicle from the terminal of the owner of the truck to the location of the disabled vehicle.
A public hearing was duly held on May 19, 1971 before the commission's attorney-examiner. No objections or protests being filed, Bud presented evidence in support of its application.
Bud's manager testified that the authority under which they were currently operating was contained in a certificate of Public Convenience and Necessity which authorized only the transportation of replacement vehicles and that Bud was now seeking authority to transport disabled vehicles. he described the facilities and financial status of Bud's Wrecker Service and the various customers using Bud regularly for towing of disabled vehicles and replacement vehicles. A financial statement and a five-page list of current commercial accounts were introduced in evidence.
Other witnesses were employees of various freight lines, who testified that they had used Bud's services in the past and hoped Bud would receive authority to 'continue' this service.
On October 22, 1971 the hearing examiner entered a Recommended Order and findings granting the Certificate:
'1. That the Commission has jurisdiction of the parties hereto, and the subject matter of this cause, which is properly before the Commission for hearing, finding, determination and order.
2. That Applicant is a resident of the State of Indiana, with a principal place of business at 1906 South Olive Street, South Bend, Indiana.
3. That Applicant is financially able to furnish adequate service; and that Applicant has a net worth of approximately $25,000, and had a net income of approximately $25,000 for the year of 1970.
4. That the proposed operation will not unreasonably impair the existing public service of any authorized common carrier serving the same territy (sic); that the supporting shippers required the services of the Applicant approximately 25 times a week, and that this is the only consistent service available for them at this time.
5. That the proposed operation will not threaten the safety of the public or be detrimental to the public welfare; that Applicant has performed the service pursuant to its authority granted by this Commission for replacement of wrecked or disabled vehicles for over 50 some companies, and that this requested authority will supplement said replacement of wrecked or disabled vehicles and provide a regular and continuance service for these said 50 companies.
6. That the public convenience and necessity requires the proposed operation; that the supporting shippers are in need of Applicant's service at least 25 times per week; and that Applicant carries on a reputable service and will serve the need required by some 50 companies already being served under the authority now held for replacement of wrecked or disabled vehicles.'
The Recommended Order stated (in part):
'IT IS THEREFORE ORDERED BY THE PUBLIC SERVICE COMMISSION OF INDIANA that a certificate of public convenience and necessity be issued to Marilyn, J. Odle d/b/a Bud's Wrecker Service, 1906 S. Olive Street, South Bend, Indiana, to operate motor vehicles as a common carrier of property, intrastate, upon the performance of the conditions hereinafter set out, as follows, to-wit:
Wrecked or disabled motor vehicles by wrecker, truckaway or two truck service,
Between all points and places in the State of Indiana, over irregular routes.'
On July 28, 1972, with no further evidence or hearing, the Commission rendered its findings and Order denying Bud's application, which Denial Order stated insofar as is material:
'1. That the Commission has juisdiction of the parties hereto, and the subject matter of this cause, which is properly before the Commission for hearing, finding, determination and order.
2. That Applicant is a resident of the State of Indiana, with a principal place of business at 1906 South Olive Street, South Bend, Indiana.
3. That the testimony of the supporting witnesses did not reveal a lack of, or need for, the type of authority sought herein; that the said supporting witnesses did not give one instance where such additional service was needed and could not be readily obtained from existing services.
4. That the public convenience and necessity do not require the service as proposed herein, and therefore said application herein should be denied, and it will be so ordered.
IT IS THEREFORE ORDERED BY THE PUBLIC SERVICE COMMISSION OF INDIANA that the application herein be, and the same is, denied.'
A Petition for Rehearing filed by Bud's sought to introduce additional evidence relating to the need for the requested authority, which was denied by the Commission on September 1, 1972. This appeal followed.
The issues may be consolidated as follows:
ISSUE ONE--Is the Commission's Order contrary to law because it changed the Hearing Examiner's findings of fact and reversed his Recommended Order granting a Certificate to Bud?
ISSUE TWO--Did the denial by the Commission of the Petition for Rehearing constitute an abuse of discretion?
As to Issue One, Bud contends that the Commission is bound by the Hearing Examiner's findings of fact and must enter an Order consistent therewith, unless it hears additional evidence or fully reviews evidence heard by him.
The Commission responds that the fact finding and decision-making power are vested solely in the Commission, and the Hearing Examiner's findings and suggested order are advisory only and may be altered or amended by the Commission in its discretion.
As to Issue Two, Bud asserts that the denial of rehearing by the Commission was an abuse of discretion in that the evidence which Bud wished to submit was not cumulative.
The Commission answers that Bud sought to submit additional evidence only which is not 'sufficient reason' within the meaning of IC 1971, 8--2--7--6, Ind.Ann.Stat. § 47--1215 (Burns 1972 Supp.), to grant a rehearing.
CONCLUSION--It is our opinion that the Commission's Order changing the findings of fact and reversing the Recommended Order of the Hearing Examiner is not contrary to law because the ultimate power to find facts and grant or deny Certificates of Public Convenience and Necessity resides exclusively in the Commission and not in the hearing Examiner.
Bud's position that the Commission is bound by the Examiner's findings of fact and Recommended Order unless it hears additional evidence rises or falls on interpretation of this statute. IC 1971, 8--2--7--6, Ind.Ann.Stat. § 47--1215 (Burns 1972 Supp.):
47--1215. Powers of the commission.--The commission is hereby vested with power and authority to supervise and regulate every motor carrier subject to the provisions of this act, to fix just and reasonable rates, fares and charges, and to prescribe classifications, rules and regulations pertaining thereto, all of which shall be just and reasonable; to regulate and supervise the schedules, service, safety, methods and hours of operating the same. The commission is further vested with power and authority to require the filing of annual and other reports and the submission of all such records and information as may be reasonably necessary to aid the commission in the exercise of the powers herein conferred upon it. . . .
If the commission, after notice and hearing, finds, upon and such investigation, that such person has failed to comply with any such provision or requirement, the commission shall issue an appropriate order to compel such person to comply therewith.
The commission, or any member thereof, or any authorized representative of the commission, shall have the power to compel the attendance of witnesses, swear witnesses, take their testimony under oath, make record thereof, and after such record is made under the direction of a commissioner, examiner, or authorized representative of the commission, the commission, or a majority thereof, may upon such record, make an appropriate order.
The commission shall have the power to hear all petitions, applications or motions filed with the commission. Such hearings may be conducted by the commission, by any member of the commission or by any examiner authorized by the commission. In case the hearing is conducted by an examiner, such examiner shall be required to promptly, but not later...
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