Priebe v. Public Service Commission

• Decision Date: 12 April 1968
• Citation: 157 N.W.2d 600,38 Wis.2d 635
• Parties: Martin PRIEBE, d/b/a Martin H. Priebe & Son, Respondent, v. PUBLIC SERVICE COMMISSION of Wisconsin, Appellant.
• Court: Wisconsin Supreme Court

Page 600

157 N.W.2d 600

38 Wis.2d 635

Martin PRIEBE, d/b/a Martin H. Priebe & Son, Respondent, v. PUBLIC SERVICE COMMISSION of Wisconsin, Appellant.

Supreme Court of Wisconsin.

April 12, 1968.

William E. Torkelson, Chief Counsel P.S.C., Clarence B. Sorensen, Madison, for appellant.

L. V. Kaminski, Princeton, for respondent.

ROBERT W. HANSEN, Justice.

The Wisconsin Legislature has provided that an application for contract carrier license shall be granted or denied, as the public interest may require, upon a finding of public convenience and necessity, taking into consideration all existing transportation facilities in the territory. ¹ This case asks the question, Is this statute to be interpreted as a legislative commitment to competition as the best guarantor of adequate carrier service or as a mandate for monopoly as the best assurance of adequate service or as neither?

The trial court decision presents the case for competition. It implies that where there is only one contract carrier in an area, there ought to be at least two to give shippers a choice and insure adequacy of service. The trial court states '* * * where the public interest requires, there may and should be competition.' The decision places heavy emphasis upon the right of farmers shipping livestock to market to quality service. While not in the statute, the reference to quality of service is not new. ² As a recognition that service involves schedules, frequency of pick-ups, time and careful handling, the reference to quality is descriptive. More than the availability of a truck to carry a cow to market may well be involved. However, the emphasis upon quality may not be used to imply that granting an additional license ipso facto increases quality of service. That is a commitment to competition as quality-engendering that has its advocates but goes beyond the legislative mandate. This is an issue of public policy that it is not for courts or commissions to decide. Both are limited by the legislative enactments, and the law, as it now is, requires consideration be given to existing transportation facilities before granting additional licenses.

Briefs on behalf of the Public Service Commission present the case against competition. They imply that, where there is one competent contract carrier in an area, there need never be two for the facilities of the one first in the field can be expanded to meet any unmet need. The commission sees its assignment from the legislature to be to '* * * make it more difficult rather than to open the way to one seeking a contract motor carrier license or amendment to an existing license where another 'private contract carrier' licensee is involved.' It is argued that a contract carrier license is a valuable property right, to be protected against 'diminution' by competition. It is argued that even the possibility of future competition would discourage capital expenditures to update and modernize terminals and transportation equipment. Where the trial court views competition as a virtue, the commission's briefs see it as a vice. The commission contends that, if the trial court is sustained, almost every application for a contract carrier license would have to be granted because it might improve the quality of service by providing additional competition. It would seem as likely to follow that, under the reasoning of the commission's brief, almost every such application would have to be denied because it would involve some measure of competition to presently licensed carriers. In both the decision of the trial court and briefs of the commission, competition and monopoly are viewed as the two alternatives, and the case for each is ably presented.

We do not enter the debate as to the merits of competition vs. monopoly in the contract carrier field. The public policy in this regard is to be established by the legislature. The law is made by the legislature. The facts upon which its application are dependent are to be ascertained by the administrative agency. The interpretation of the law and review of the commission action as to reasonableness are for the courts to rule upon.

However, we do not interpret the Motor Vehicle Transportation Act, as it relates to the contract motor carrier filed, to contain a legislative mandate in favor of competition or in favor of monopoly. If the legislature intended to recognize competition as a guarantor of adequacy of service, it could and would have said so. If the legislature intended to insulate existing license holders against future competitors, it could and would have said so. Up to now, it has not done so. Therefore, to start and not stray from the premise that competition is inherently good is to go beyond the legislative mandate. Likewise, to begin and never leave the concept that competition is inherently bad is to go beyond the legislative mandate.

The trial court is correct in its view that 'public convenience and necessity' require consideration of the reasonable needs and wants of the farmers' group supporting the respondent's application. They are a '* * * (well defined) class * * *' of the public within the meaning of the statute. The commission is correct in stating that 'public convenience and necessity' require consideration of the impact of the application upon other contract motor carrier services with consideration to be given to '* * * all existing transportation facilities in the territory for which a license is sought.' The record must be reviewed in the light of both statutory mandates. Actually, there is little dispute as to the essential facts in this case.

Priebe testified that he made his application at the request of two packing houses in Green Bay and farmers in the Green Lake area. The farmers involved are members of a farm organization centered in the Town of Brooklyn who entered into an agreement for the group marketing of their livestock in Green Bay. They have a group representative in Green Bay who sells their livestock to Green Bay packing plants, almost entirely to the Liebmann Packing Company. They ship their livestock from their farms to the Central Wisconsin Livestock Cooperative in Green Bay, located across the street from the Liebmann plant. The farmers involved testified that this collective marketing arrangement has resulted in prices being secured by them more than one dollar per hundredweight over the usual market price.

As part of this cooperative marketing arrangement, the farmers involved sought a direct trucking arrangement to take their cattle from their farms to the livestock cooperative yard in Green Bay. Priebe had a license from the commission giving him authority to haul livestock from the Brooklyn area to Green Bay but only when he hauled for a certain cattle buyer in Ripon. To avoid the middleman, the farmers involved entered into a leased truck arrangement with Priebe. At the time trucking under such a lease did not require approval of the commission. ³ While legally unchallengeable at the time, this arrangement had practial inconveniences. Any one of the farmers involved who desired to market livestock would call the livestock cooperative in Green Bay to determine the price being paid, which fluctuated daily. If the price were satisfactory, he would so notify the cooperative which would then notify Priebe to make the pick-up. The farmers involved testify they would prefer to be able to phone Priebe directly for pick-ups as part of a direct shipping service from their farms to the central collection point.

On the record established, it is clear that the group of farmers participating in the cooperative marketing agreement constitute stitute a '* * * (well defined) class * * *' or group...