Skjonsby Truck Line, Inc., Application of

• Decision Date: 30 October 1984
• Docket Number: No. 641,No. 10674,641,10674
• Parties: In the Matter of the Application of SKJONSBY TRUCK LINE, INC., Fargo, North Dakota, to Sell and Morgan Drive-Away, Inc., Elkhart, Indiana, To Buy a Portion of Special Certificate of Public Convenience and NecessityBARRETT MOBILE HOME TRANSPORT, INC., Plaintiff and Appellant, v. SKJONSBY TRUCK LINE, INC., and Morgan Drive-Away, Inc., Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 227

357 N.W.2d 227

In the Matter of the Application of SKJONSBY TRUCK LINE INC., Fargo, North Dakota, to Sell and Morgan Drive-Away Inc., Elkhart, Indiana, To Buy a Portion of Special Certificate of Public Convenience and Necessity No. 641 BARRETT MOBILE HOME TRANSPORT, INC., Plaintiff and Appellant, v. SKJONSBY TRUCK LINE, INC., and Morgan Drive-Away, Inc. Defendants and Appellees.

Civ. No. 10674.

Supreme Court of North Dakota.

Oct. 30, 1984.

Rosenberg & Baird, Bismarck, for plaintiff and appellant; argued by LaRoy Baird, III, Bismarck.

Van Osdel, Foss & Miller, Fargo, for defendants and appellees; argued by Michael E. Miller, Fargo.

Daniel S. Kuntz, Asst. Atty. Gen., North Dakota Public Service Commission, Bismarck, for Public Service Commission.

Hanson, Crockett & Anderson, Fargo, for applicant.

ERICKSTAD, Chief Justice.

Barrett Mobile Home Transport, Inc. [Barrett] appeals from a district court judgment affirming an order of the North Dakota Public Service Commission [PSC] which approved an application by Skjonsby Truck Line, Inc. [Skjonsby] to transfer a part of its motor carrier authority to Morgan Drive-Away, Inc. [Morgan]. We affirm.

Skjonsby possesses Special Certificate of Public Convenience and Necessity No. 641, which, in relevant part, authorizes Skjonsby to transport:

"(4) Factory-manufactured buildings or sections of buildings, not including stick-built buildings: Between points in North Dakota."

On December 15, 1982, Skjonsby filed an application with the PSC to sell, and Morgan to purchase, a part of the authority it held under paragraph four of its certificate. Skjonsby proposed to transfer to Morgan the authority to transport:

" 'Factory manufactured buildings or sections of buildings, not including stick built buildings, except those transported on ordinary flat-bed or lowboy trailers: Between points in North Dakota.' "

Skjonsby proposed to retain the authority to transport:

" 'Factory manufactured buildings or sections of buildings, not including stick built buildings, when transported on ordinary flat-bed or lowboy trailers: Between points in North Dakota.' "

On August 18, 1983, a hearing was held and appearances were entered on behalf of Skjonsby, Morgan and Barrett. On October 21, 1983, the PSC issued its findings of fact, conclusions of law and order approving the application.

The PSC found as facts that: (1) Skjonsby has conducted operations under the part of the certificate to be sold "both in tow-away service and in the transportation of buildings on trailers which are two distinct, and mutually exclusive, types of service;" (2) although Skjonsby has provided such service "only to a limited extent, it has held itself out to perform such service in the form of filing appropriate tariffs and there is no evidence that it has refused to perform such service on any occasion;" (3) Skjonsby is operating under Chapter 11 of the Bankruptcy Act which has limited its operations, and approval of the application "would improve its financial ability to continue its operations;" (4) Morgan possesses the necessary equipment, personnel, finances and facilities and is thus "fit, willing and able to provide the proposed transportation service;" (5) Barrett holds authority to provide service substantially as contained in the part of the certificate sought to be transferred and "fears diversion of traffic if this application is granted;" and (6) division of paragraph four of Skjonsby's certificate "will be consistent with the public interest and Public Convenience and Necessity require the granting of this application."

Barrett appealed from the PSC's order to the district court, which affirmed the PSC's decision. Barrett now appeals from that judgment.

Barrett asserts on appeal that the PSC erred in approving Skjonsby's application because: (1) the PSC has no statutory authority to approve a transfer of only a part of a certificate of public convenience and necessity; (2) the PSC did not consider all of the factors set forth in Sec. 49-18-14, N.D.C.C.; (3) the PSC's finding that Skjonsby conducted two distinct and mutually exclusive types of service is not supported by a preponderance of the evidence; (4) the PSC's finding that a division of Skjonsby's authority will be consistent with the public interest and public convenience and necessity is not supported by a preponderance of the evidence; and (5) Skjonsby has abandoned the authority it seeks to transfer to Morgan.

In an appeal from a decision of an administrative agency, we review the decision of the administrative agency rather than the decision of the district court, and look to the record compiled by the agency. Garner Public School v. Golden Valley County Committee, 334 N.W.2d 665, 671 (N.D.1983); Application of Nebraska Public Power Dist., 330 N.W.2d 143, 146 (N.D.1983). Our review of an administrative agency decision involves a three-step process whereby we determine whether or not the findings of fact are supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and the decision is supported by the conclusions of law. Appeal of Dickinson Nursing Center, 353 N.W.2d 754, 757 (N.D.1984); Grant Farmers Mutual v. State by Conrad, 347 N.W.2d 324, 326 (N.D.1984); Sec. 28-32-19, N.D.C.C. We do not make independent findings of fact or substitute our judgment for that of the qualified experts in the administrative agency, but determine only whether or not a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record. Appeal of Dickinson Nursing Center, supra; Application of Nebraska Public Power Dist., supra; Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979).

Administrative agency decisions on questions of law are fully reviewable by our Court. Appeal of Dickinson Nursing Center, supra; Grant Farmers Mutual, supra. An agency's interpretation of a certificate of authority issued by it is generally treated with deference by the courts and is not set aside unless the interpretation is unreasonable, arbitrary or capricious. Skjonsby Truck Line, Inc. v. Elkin, 325 N.W.2d 271, 274 (N.D.1982).

Barrett initially contends that the PSC has no power to transfer only a part of the authority granted in a certificate of public convenience and necessity. Section 49-18-26, N.D.C.C., provides in pertinent part that a "certificate or permit shall be transferable only upon approval by the commission, after opportunity for hearing, giving notice to all interested parties; ..."

Although Sec. 49-18-26, N.D.C.C., neither expressly authorizes nor specifically prohibits a partial transfer of a certificate of public convenience and necessity, we have stated that "the practical construction of a statute by the agency administering the law is entitled to some weight in construing the statute, especially where the agency interpretation does not contradict clear and unambiguous statutory language." Clapp v. Cass County, 236 N.W.2d 850, 856 (N.D.1975). See also In re Dilse, 219 N.W.2d 195, 200 (N.D.1974); State Tax Commissioner v. Tuchscherer, 130 N.W.2d 608, 615 (N.D.1964).

We find unpersuasive Barrett's argument that the PSC has no authority to approve partial transfers. In Hentz Truck Line, Inc., Etc. v. Elkin, 294 N.W.2d 774, 778 (N.D.1980), we indicated that if the evidence established that only a part of a certificate had been abandoned, the certificate could be amended in a transfer proceeding under Sec. 49-18-26, N.D.C.C. Courts in several other jurisdictions have held that it is within the power of an administrative agency to permit division of a motor carrier certificate into two or more parts and to approve the sale of less than all of the parts. See Eagle Motor Lines v. Alabama Public Service Com'n, 343 So.2d 767 (Ala.1977); Houston & North Texas Motor Freight Lines v. Johnson, 140 Tex. 166, 166 S.W.2d 78 (1942); State v. Washington Public Service Commission, 54 Wash.2d 382, 340 P.2d 784 (1959). See generally Annot., 15 A.L.R.2d 883, Sec. 5 (1951 and Later Case Service). But see Braddock v. Public Utilities Commission, 137 Ohio St. 59, 27 N.E.2d 1016 (1940).

We agree with the rationale of the Texas Supreme Court in Houston & North Texas Motor Freight Lines, supra, 140 Tex. at 169-170, 166 S.W.2d at 80:

"Since the Commission by this Act is vested with full authority to grant such certificates and to approve the sale thereof, and to supervise and regulate motor carriers for the purposes and to the extent above provided for, we see no reason why it should not be held that it has authority, under the above Act, to permit the division of the route covered by a certificate into two or more parts and the sale of a portion thereof to a third party. In other words, if the Commission had the authority in the first instance to have granted one certificate ... we see no reason why, under the broad powers embodied in the foregoing Act, it should not be permitted upon request of the owner to divide the certificate previously granted, and to permit sale of portions thereof to different purchasers."

We therefore conclude that the PSC has the authority to approve a division and transfer of a part of the authority granted in a certificate of public convenience and necessity.

Barrett also asserts that the PSC erred in approving the transfer without taking into consideration all of the factors outlined in Sec. 49-18-14, N.D.C.C., which provides:

"49-18-14. Factors to be considered by commission in granting certificate. Before granting a certificate to a common motor carrier, the commission shall take into consideration:

1. The need for service proposed by the applicant; 2. The increased cost of maintaining the highway concerned;

3. The effect on other existing transportation facilities;

4. The fitness and ability of applicant to provide service;

5. Adequacy of proposed service; and

6. Such other...