Robinson v. Gallagher Transfer & Storage Co.

• Decision Date: 28 April 1942
• Docket Number: 2211
• Citation: 125 P.2d 157,58 Wyo. 69
• Parties: ROBINSON v. GALLAGHER TRANSFER & STORAGE CO
• Court: Wyoming Supreme Court

125 P.2d 157

58 Wyo. 69

ROBINSON v. GALLAGHER TRANSFER & STORAGE CO

No. 2211

Supreme Court of Wyoming

April 28, 1942

APPEAL from the District Court, Laramie County, SAM M. THOMPSON Judge.

Proceeding in the matter of the application of Harry Robinson, doing business as Robinson Transportation Company, Lander, Wyoming for extension of certificate of convenience and necessity No 52 as an intrastate common carrier in Wyoming, wherein a protest was filed by the Gallagher Transfer & Storage Company. From a judgment of the District Court directing the revocation of the Public Service Commission's order which granted the application, the applicant appeals.

Reversed with instructions.

For the appellant there was a brief and oral arguments by L. A. Crofts and A. H. Maxwell of Lander.

Robinson was a common carrier only over the route in question. Laws 1937, Chapter 121, Section 1. The Commission has power to supervise carriers and issue certificates. Laws 1937, Chapter 121, Sections 3 and 4; Laws 1935, Chapter 65, Section 6. The evidence shows that public convenience and necessity existed for the extension of Robinson's certificate. The District Court erred in vacating the order of the Commission extending Robinson's certificate. Our statute providing a preference for existing carriers was repealed by Chapter 65, Laws 1932. Missouri, Kansas and Oklahoma v. State (Okla.) 81 P.2d 663. Gallagher Company had no vested right in authority it did not exercise. Russell v. Calhoun, 51 Wyo. 456; Denman v. Dept. of Public Works (Wash.) 289 P. 36. Our legal system does not differ from others as to evidence. Only one witness is required to establish a fact, except in special instances requiring corroboration. 3 Ency. Evidence 672; 23 C. J. 53; 20 Amer. Jur. 1044. On appeals from the Commission, the court shall determine whether the Commission acted without or in excess of its authority; whether the final order or decision was procured by fraud; whether the decision was lawful; whether it is supported by substantial evidence. There was no reference to the finding of the Commission that Gallagher Company had abused a monopoly extended by the Commission. The evidence shows that Gallagher Company had not performed necessary services. Russell v. Calhoun, supra. The Commission had discretion to provide transportation between Rawlins and Lander. Public convenience and necessity demands it. The judgment of the District Court should be reversed.

For the respondent there was a brief and oral arguments by George F. Guy of Cheyenne, Wyoming, and J. H. Shepherd of Denver, Colorado.

The one question before the Commission was whether convenience and necessity warranted the issuance of an additional certificate authorizing transportation of property by a motor carrier between Lander and Rawlins. The Commission ruled in the affirmative and its order was reversed by the District Court. The judgment of the District Court is sustained by the evidence. Vander Werf v. Railroad Comm. (S. D.) 237 N.W. 909; Stark Electric Co. v. Pub. Utilities Comm. (Ohio) 161 N.E. 208; Central Truck Lines v. Railroad Commission (Fla.) 160 So. 22; State v. Public Works (Wash.) 206 P. 21; Red Diamond Company v. Transp. Co. (Ky.) 26 S.W.2d 28. An additional certificate should not be granted unless it be shown that the present service is insufficient and that protestants have refused to put on sufficient service. Superior Motor Bus Co. v. Community Bus Co. (Ill.) 150 N.E. 668; Coney Island Motor Bus Corp. v. Public Utilities Commission (Ohio) 152 N.E. 25; Columbus Electric Co. v. Public Utilities Commission (Ohio) 155 N.E. 646. The Oklahoma case of Missouri K. & O. Lines v. State (Okla.) 81 P.2d 660, relied upon by appellant, is contrary to the weight of authority. It was shown by the evidence that the application of Robinson was a mere subterfuge to enable him to get the interstate business available over the line between Lander and Rawlins. Repeated assertions in appellant's brief that the Gallagher Company had failed to perform the required carrier service is unsupported by the evidence. The judgment of the District Court should be sustained.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

This litigation arose in consequence of an application made by one Harry Robinson, doing business as Robinson Transportation Company, of Lander, Wyoming, hereinafter usually referred to as the "applicant", to the Public Service Commission of the State of Wyoming, subsequently herein designated as the "Commission". Robinson's application sought an extension of a so-called certificate of convenience and necessity, numbered 52, as an intrastate common motor carrier in Wyoming, held by the applicant. This certificate of convenience and necessity held by him at the time of his present application for the extension thereof granted him authority on the part of the Commission to transport passengers and light express from Rawlins, Wyoming, to Lander, Wyoming, as well as to transport freight and passengers seasonably between Lander, Wyoming, and Rock Springs, Wyoming, via South Pass. Due to the unimproved character of the South Pass route and the fact that it traversed rough, mountainous territory, it could only be used a portion of the year. The extension application sought was to obtain the privilege of carrying freight over a route possessing an improved roadway and making all year operation possible, viz., over Highway U.S. 287 from Rawlins, Wyoming, to Muddy Gap and Lander, serving intermediate points thereof between the two last mentioned places also. The applicant used this all year route to transport passengers and light express between Lander and Rawlins.

Robinson's application was attacked by a protest filed on behalf of the Gallagher Transfer and Storage Company of Denver, Colorado, a corporation organized under Colorado laws and frequently mentioned hereinafter as the "protestant" or simply "Gallagher". The application aforesaid was filed with the Commission May 20, 1940; it was amended May 25 and June 19, 1940; and the protest against it was filed June 13 of that year.

June 20, 1940, an order was made by the Commission directing the protestant to appear and show cause why the Commission should not revoke "that portion of their Wyoming common carrier operating rights between Lander, Wyoming, and Rawlins, Wyoming," the protestant having theretofore, on April 10, 1940, by an order of the Commission, been authorized to acquire among other rights the authority to conduct common motor carrier operations between Lander, Wyoming, and Rawlins, Wyoming.

On July 8, 1940, the Commission held hearings concerning both the application and the protest against it and also in connection with the "show-cause" order above mentioned. As a consequence the "show-cause" order was dismissed and Robinson's application was allowed.

Preliminary to its order disposing of these two matters the Commission stated and found among other things that:

"There are no Wyoming intrastate common carriers at the present time transporting property between points and over the route hereinbefore described between Lander, Wyoming, and Rawlins, Wyoming. However, the Gallagher Transfer and Storage Company is in the possession of such operating authority."

And also that:

"Due to the fact that the Gallagher Transfer and Storage Company has failed to provide direct service between Rawlins, Wyoming, and Lander, Wyoming, the only available route for shippers of freight between points on U.S. 30 and Lander, Wyoming, is via Casper, Wyoming. No service whatsoever is being provided persons living between Muddy Gap, Wyoming, and Lander, Wyoming.

"The protestant states that it will provide service between Lander and Rawlins in conformity with their operating authority, if so instructed by the Commission. However, in view of the fact that the protestant is in possession of, and is operating, a more remunerative route into Lander via Casper, we are doubtful if a diligent development of this route between Lander and Rawlins would be affected, even if the protestant were so ordered by the Commission.

"The applicant is now providing daily passenger, baggage and express service over the route hereunder consideration, and proposes daily service under this property carrying application. The past operations of the applicant as a Wyoming intrastate common carrier are proof of his being fit and able to provide the service herein proposed.

"It appears from the evidence in this case and in Docket No. 7795, that the protestant has abused a monopoly extended it by this Commission, and that such a situation can only be corrected by the granting of similar authority to a competing carrier who has indicated a willingness to provide the service intended in this Commission's order under Docket 1651, dated February 2, 1938."

The order of the Commission following these statements or findings was:

"WHEREFORE IT IS HEREBY ORDERED That the Wyoming Intrastate operating authority of Harry Robinson dba Robinson Transportation Company under Certificate of Public Convenience and Necessity No. 52, be, and the same is hereby, extended to include the transportation of property between Lander, Wyoming, and Rawlins, Wyoming, via U. S. Highway No. 287, including intermediate service to all points along and over said route, except between Rawlins, Wyoming, and Muddy Gap, Wyoming, and points intermediate thereto.

"AND IT IS FURTHER ORDERED That the operator shall provide such property transportation service between Lander, Wyoming, and Rawlins, Wyoming, on a schedule of at least one round trip per week.

"AND IT IS FURTHER ORDERED That the operating rights hereinbefore described shall be incorporated into and...