Stowers and Sons Trucking Co., Inc. v. Public Service Com'n of West Virginia

• Citation: 182 W.Va. 374,387 S.E.2d 841
• Decision Date: 20 December 1989
• Docket Number: No. 19014,19014
• Court: Supreme Court of West Virginia
• Parties: STOWERS AND SONS TRUCKING COMPANY, INC. v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA and Eugene Roberts & Son, Inc.

Page 841

387 S.E.2d 841

182 W.Va. 374

STOWERS AND SONS TRUCKING COMPANY, INC. v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA and Eugene Roberts & Son, Inc.

No. 19014.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1989.

Syllabus by the Court

1. " 'In a proceeding for a certificate to operate as a common carrier an order of the Public Service Commission will not be disturbed on appeal unless its findings are contrary to the evidence, are without evidence to support them, are arbitrary or result from a misapplication of legal principles.' Syl. Pt. 1, Weirton Ice & Coal Supply Co. v. Public Serv. Comm'n, 161 W.Va. 141, 240 S.E.2d 686 (1977)." Syllabus, Browning-Ferris Indus. v. Public Serv. Comm'n, 175 W.Va. 52, 330 S.E.2d 862 (1985).

2. "Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syllabus Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).

3. " 'The word "shall" in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation.' Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969)." Syllabus Point 5, Rogers v. Hechler, 176 W.Va. 713, 348 S.E.2d 299 (1986).

4. Under our Common Carrier by Motor Vehicle Act, W.Va.Code, 24A-2-5 (1980), which provides that if "the service furnished by existing transportation facilities is reasonably efficient and adequate, the commission shall not grant such certificate," the Public Service Commission has a mandatory duty to consider evidence as to the sufficiency of existing service. If such existing service is reasonably efficient and adequate, the Public Service Commission should not issue a competing certificate.

Michael L. Keller, Goodwin & Goodwin, J.A. Bibby, Jr., Bibby & Good, Charleston, W.Va., for petitioner Stowers and Son Trucking Company, Inc.

Arden J. Curry, Pauley, Curry, Sturgeon & Vanderford, Charleston, for Eugene Roberts & Son, Inc.

Franklin G. Crabtree, Public Service Com'n of W.Va., Charleston, for Public Service Com'n.

MILLER, Justice:

Stowers and Sons Trucking Company, Inc. (Stowers), appeals from a final order of the Public Service Commission (PSC), which reversed a recommended decision by an administrative law judge and granted Eugene Roberts & Son, Inc. (Roberts), an amended certificate to operate as a common carrier by motor vehicle for the purpose of transporting tanks and pipe to and from six southern West Virginia counties. Stowers asserts that the PSC misapplied the law by injecting the doctrine of regulated competition into the case and finding that Roberts had made a prima facie case of public need. Stowers also contends that the PSC arbitrarily failed to accord proper respect to the decision of the administrative law judge. After a careful examination of the evidence presented below, we agree, and, therefore, we reverse the decision of the PSC.

On March 1, 1988, Roberts, a commercial enterprise based in Lincoln County, West Virginia, obtained a certificate of authority from the PSC to operate as a common carrier by motor vehicle for the purpose of transporting tanks and pipe from Cabell and Putnam counties to Fayette, Logan, Mingo, and Wyoming counties. Roberts had been engaged in contract work primarily consisting of laying pipe lines and digging trenches for oil and gas companies for approximately eight years. On March 28, 1988, Roberts applied to the PSC for an amended certificate to expand its operating authority to haul tanks and pipe within and between Fayette, Kanawha, Logan, McDowell, Mingo, and Wyoming counties.

Stowers has operated as a trucking company for thirty-two years with its base of operations in Lincoln County. It has a certificate of operating authority from the PSC to serve as a common carrier by motor vehicle throughout the state. Stowers, which is engaged in transporting material, including tanks and pipe, for the oil and gas industry, timely protested the issuance of an amended certificate to Roberts.

At an administrative hearing, Maxie L. Roberts, son of Eugene Roberts and a corporate officer of Roberts, testified that his company needed the additional operating authority to meet the requirements of its customers, who were expecting an increase in business in the near future. The evidence showed that in the three months after the issuance of the certificate, Roberts had transported materials on five or six occasions for approximately four customers.

Three other witnesses testified for Roberts. Richard Wyont, production coordinator for a natural gas company, stated that his company had hired Roberts to dig pipelines before it was certified as a common carrier. Mr. Wyont testified that his company used a common carrier to transport pipe about twice a year, usually needed hauling services on short notice, and had used Roberts' hauling service one time. Mr. Wyont testified that he was satisfied with Roberts' service and believed there was a general need for another pipe hauling company in the area, although he had no knowledge of Stowers and was not opposed to using their services in the future.

Donald Pack, a gas foreman with Pennzoil Company in Lincoln County, stated that Roberts had provided excellent transportation service on several occasions and that he believed it would be a convenience to his company and to the public in general to have a second hauling company in the area. On cross-examination, Mr. Pack stated that Pennzoil had routinely used Stowers without complaint. Tom Liberatore, operations manager for an independent oil and gas producer, testified that his company had used Roberts' contract services in the past and would employ Roberts to haul tanks and pipe in Kanawha County if the amended certificate were granted. Mr. Liberatore testified that he had no complaint with Stowers, whose services he had used in the past, but found other haulers more economical for a smaller company.

Kenneth Rainwater, drilling superintendent with FWA Drilling Company (FWA), testified for Stowers. Mr. Rainwater testified that FWA used only Stowers for moving oil and gas field equipment and used seven or eight trucks for 200-300 days a year. Mr. Rainwater testified that he did not see a need for an additional carrier because of the good service FWA had received from Stowers, but was not opposed to another carrier being certified. James Kuhn, an employee of McJunkin Corporation, expressed satisfaction with the prompt services provided by Stowers, but stated that he would not hesitate to use Roberts' services if the amended certified were issued.

Finally, Wiley Stowers, majority stockholder of Stowers, testified that his company had twenty-seven PSC licensed trucks to provide statewide transportation services. In his view, there was no unmet need. He testified that since 1982, there had been a downturn in the oil and gas business, idling approximately one-half of his trucks on any given day, and that in 1988, his business had declined. Mr. Stowers was of the opinion that there was no unmet need and that his company could handle twice as much business as it had.

The administrative law judge concluded that Roberts was fit and proper to hold additional authority and had financial resources to provide expanded services. However, he further concluded that Roberts had not made a prima facie case of any need for service that had not been met by the existing certified carrier. Roberts filed exceptions to the administrative law judge's order. The PSC reviewed the record and reversed the administrative law judge, relying on Mac's Wrecker Serv., Inc., M.C. Case No. 3358 (December 1979), and concluding that the public interest would be served by an additional carrier. Stowers appeals from that final order.

The standard of review for final orders by the PSC, set forth in United Fuel Gas Co. v. Public Serv. Comm'n, 143 W.Va. 33, 99 S.E.2d 1 (1957), applies to certification of common carriers, as we stated in the single Syllabus of Browning-Ferris Indus. v. Public Serv. Comm'n, 175 W.Va. 52 , 330 S.E.2d 862 (1985):

" 'In a proceeding for a certificate to operate as a common carrier an order of the Public Service Commission will not be disturbed on appeal unless its findings are contrary to the evidence, are without evidence to support them, are arbitrary or result from a misapplication of legal principles.' Syllabus Point 1, Weirton Ice & Coal Supply Co. v. Public Serv. Comm'n, 161 W.Va. 141, 240 S.E.2d 686 (1977)."

We observe initially that the PSC has ignored the clear mandate of our Common Carrier by Motor Vehicle Act, W.Va.Code, 24A-2-5(a) (1980), which contains the procedure necessary to obtain a certificate to operate as a common carrier by motor vehicle. ¹ This statute, among other things, requires that if the PSC finds "from the evidence that the public convenience and necessity require the proposed service or any part thereof, it shall issue the certificate[.]" Pertinent additional language is also found at the end of subsection (a):

"[T]he commission shall also take into consideration existing transportation facilities in the territory for which a certificate is sought, and in case it finds from the evidence that the service furnished by existing transportation facilities is reasonably efficient and adequate, the commission shall not grant such certificate."

These two considerations are obviously interrelated. If the existing transportation facilities are reasonably efficient and adequate, then there would be no basis for finding that the public convenience and necessity would require an additional service. We acknowledged this dual proposition in one of our earliest motor carrier cases, Monongahela West Penn Public Serv. Co. v. State Road Comm'n of West Virginia, 104 W.Va. 183, 192, 139 S.E. 744, 748 (1927):

"Courts and Commissions construing statutes similar to ours have uniformly held that...