Salt Lake Transfer Co. v. Public Service Comn. Union Pacific Railroad Co.

• Decision Date: 26 July 1960
• Docket Number: 9095,Nos. 9082,s. 9082
• Citation: 355 P.2d 706,11 Utah 2d 121
• Parties: d 121 SALT LAKE TRANSFER COMPANY and Ashworth Transfer, Inc., Plaintiffs, v. PUBLIC SERVICE COMMISSION of Utah, and Barton Truck Line, Inc., Defendants. UNION PACIFIC RAILROAD COMPANY, a corporation, Union Pacific Motor Freight Company, a corporation, and Consolidated Freightways, Inc., a corporation, Plaintiffs, v. PUBLIC SERVICE COMMISSION of Utah, and Barton Truck Line, Inc., Defendants.
• Court: Utah Supreme Court

Page 706

355 P.2d 706

11 Utah 2d 121

SALT LAKE TRANSFER COMPANY and Ashworth Transfer, Inc., Plaintiffs, v. PUBLIC SERVICE COMMISSION of Utah, and Barton Truck Line, Inc., Defendants.

UNION PACIFIC RAILROAD COMPANY, a corporation, Union Pacific

Motor Freight Company, a corporation, and Consolidated Freightways, Inc., a corporation, Plaintiffs, v. PUBLIC SERVICE COMMISSION of Utah, and Barton Truck Line, Inc., Defendants.

Nos. 9082, 9095.

Supreme Court of Utah.

July 26, 1960.

Pugsley, Hayes, Rampton & Watkiss, Salt Lake City, for Salt Lake Transfer Co. and another.

Bryan P. Leverich, Scott M. Matheson, Jr., Harold N. Wilkinson, and Sid N. Cornwall, Salt Lake City, for Union Pac. R. Co., et al.

Walter L. Budge, Atty. Gen., Raymond W. Gee, Asst. Atty. Gen., J. Reed Tuft, John G. Marshall, Salt Lake City, for defendants.

CALLISTER, Justice.

This is a consolidation of two petitions to review an order of the Public Service Commission granting the application of Barton Truck Line, Inc. to amend its certificate of convenience and necessity, No. 1127. The order increases the authority of Barton and would permit it to render local service to intermediate points between Salt Lake City and Ogden, Utah.

Plaintiffs, Union Pacific Railroad Company, Union Pacific Motor Freight Company and Consolidated Freightways, Inc., assail the Commission's order in its entirety, contending that the Commission acted arbitrarily. These plaintiffs have for many years had the authority to transport commodities generally in the area involved.

Salt Lake Transfer Company and Ashworth Transfer, Inc. assail the order of the Commission, contending that the Commission arbitrarily refused to exclude explosives from Barton's increased authority. These two plaintiffs have had authority to transport household goods, commodities requiring specialized service or equipment, explosives, and some other items.

Prior to this application, Barton held two overlapping certificates of convenience and necessity. No. 1127 authorized the transportation of commodities generally, except livestock, between Salt Lake City and Ogden, and intermediate points, on the one hand and points west of Grantsville on the other hand. No. 1074 permits the transportation of commodities generally, including explosives, between Salt Lake City on the one hand and Tooele City and certain other points in Tooele County on the other hand.

The Commission had previously ruled that these two certificates, considered together, would not permit service by Barton between Ogden and intermediate points north of Salt Lake City limits on the one hand and points east of Grantsville, such as Tooele, on the other hand. It is conceded that the order now under review would authorize this service as well as local service between Salt Lake City and Ogden.

As previously enunciated by this Court, ¹ we will not disturb the findings of the Commission if supported by substantial evidence and are reaonable in view of the evidence.

The record of the hearing before the Commission is somewhat voluminous and permits only a general characterization of the evidence presented.

Barton presented evidence relating to its present operations, equipment, facilities, and financial ability. The evidence sustains the Commission's finding that these were satisfactory.

Numerous shippers testified, in behalf of Barton's application, as to their dissatisfaction with the existing carrier facilities and to the inconvenience experienced by reason of inadequate service. Also that many shipments were damaged. Nearly all of this testimony was directed at Wasatch Fast Freight, a trade name division of Consolidated.

The results of a survey were admitted into evidence indicating that the population of Davis County was increasing more rapidly than in any other county in the state and that increased business activity could be expected.

Consolidated introduced evidence to the effect that it had recently expended a considerable amount of money in acquiring new equipment and terminal facilities for Wasatch in order to improve its services. It presented an analysis of its 1958 claim experience which indicated that Wasatch handled 144,881 shipments and received only 1.063 claims, for a 99.27 per cent claim-free record. The Commission found that, while the percentage was small, over 1,000 claims within one year indicate a somewhat unsatisfactory or inadequate service. The Commission further made a finding that there were instances of delay by Wasatch in both pickup and delivery of shipments and erroneous delivery of shipments.

The transportation of general commodities between Salt Lake City and Ogden, including service to intermediate points, is handled in part by Union Pacific Railroad by rail and also by its wholly-owned subsidiary, Union Pacific Motor Freight Company. The latter company operates on railroad billing and at railroad rates. Its rights are supplemental, auxiliary to, and co-ordinated with the operations of the railroad.

On December 29, 1958, the Bamberger Railroad, which for many years transported general commodities between Salt Lake City and Ogden, and intermediate points, ceased doing business and sold to Union Pacific a part of its property. Union Pacific did not, however, acquire any of Bamberger's transportation rights.

Union Pacific, while conceding it has no vested right to serve shippers formerly using Bamberger facilities, contends that it is ready, willing and able to handle the Bamberger traffic without depriving those shippers of a single day of service. It argues that there is no need for an additional motor carrier to handle the freight of Bamberger shippers, and that there is no evidence in the record that Union Pacific could not adequately serve these shippers.

If Bamberger's cessation of business were the only basis for the Commission's order, the argument of Union Pacific would have considerable merit, for as we read the record there is no evidence that Union Pacific could not adequately handle the shippers who formerly used Bamberger's services.

However, the Commission's findings are directed at the adequacy of the highway, rather than railroad, transportation. It stated in its finding No. 4:

'* * * The truckline company [Union Pacific Motor Freight] is intended to operate as a railroad service only which should not affect, any more than the former rail service affected, the adequacy or inadequacy of highway motor transportation between Salt Lake and Ogden. This fact justifies the conclusion that there is traffic formerly handled by Bamberger in excess of that which other carriers handled prior to December, 1958, and the increase in population in the Salt Lake-Ogden area with the possible future increase in business development gives weight to the suggestion that additional motor carrier service is and will be necessary in the interests of the public.'

In its finding No. 13, the Commission further found:

'* * * The evidence shows instances of delay by Wasatch in both pickup and delivery of shipments and delay in processing claims resulting, in some instances, in shippers discontinuing the use of the Wasatch service. The evidence also shows delays in pickups until after the shippers' five o'clock closing time necessitating the holding of employees for service at overtime wages. There have been instances of erroneous delivery of shipments to persons other than consignees and difficulty by other carriers in making interline arrangements with Wasatch of Salt Lake. This general course of conduct, coupled with claims for damaged or lost shipments, undoubtedly accounts for the 1,063 claims registered with the company for the year 1958. All these facts, coupled with the retirement from the highway transportation field of BambergerElectric persuades the Commission that public convenience and necessity justify the issuance to applicant of the authority for which it makes application.'

After a careful review of the record it appears that the Commission's findings, that the existing motor carrier service was inadequate and that additional service was in the public interest, are supported by substantial evidence and are reasonable in view of the evidence. However, we do not take the same view with relation to the matter of explosives.

At the hearing Barton amended its application to exclude therefrom the transportation of household goods, commodities in connection with the transportation of which special service is required in preparing said commodities for shipment, or in setting up after delivery, which service is not regularly furnished by common carriers at regular line rates or by common carriers of specialized commodities at regularly published rates, and it also excluded commodities in bulk. This amendment excluded the commodities transported principally by Ashworth and Salt Lake Transfer, with the exception of explosives.

In the presentation of its case, Barton did not offer any evidence concerning the transportation of explosives. At the conclusion of Barton's case, Ashworth and Salt Lake Transfer moved to dismiss the application as to the transportation of explosives on the ground that there was no evidence showing any need, present or prospective, for this type of service. The Commission properly denied this motion.

Where, as here, there is an application to transport commodities within an accepted classification, such as 'commodities generally,' the applicant need not, in the first instance, demonstrate a need for the transportation of every conceivable item encompassed by the classification. A contrary view would impose an almost impossible burden upon the applicant. ²

Ashworth and Salt Lake Transfer both introduced testimony relating to their transportation of explosives between Salt Lake City and Ogden and intermediate points as well as between Hill Field and points in Tooele County. It appeared that these two carriers were highly competitive for the hauling of explosives...