Utah Light & Traction Co. v. Public Service Commission

• Decision Date: 07 November 1941
• Docket Number: 6255
• Citation: 101 Utah 99,118 P.2d 683
• Parties: UTAH LIGHT & TRACTION CO. v. PUBLIC SERVICE COMMISSION et al
• Court: Utah Supreme Court

118 P.2d 683

101 Utah 99

UTAH LIGHT & TRACTION CO. v. PUBLIC SERVICE COMMISSION et al

No. 6255

Supreme Court of Utah

November 7, 1941

[Copyrighted Material Omitted]

Original statutory proceeding by the Utah Light and Traction Company against the Public Service Commission of Utah and another for review by the Supreme Court of an order of the Public Service Commission granting to defendant Airway Motor Coach Lines, Inc., a certificate of convenience and necessity to operate as a common carrier of passengers in certain territory.

Order of the Commission affirmed.

George R. Corey and Calvin Behle, both of Salt Lake City, for plaintiff.

Grover Giles, Atty. Gen., A. C. Melville and J. Allan Crockett, both of Salt Lake City, and Glen E. Howe, of Murray, for defendants.

LARSON Justice. McDONOUGH, J., WOLFE, Justice, concurring. PRATT J., TRUEMAN, District Judge, dissenting. MOFFAT, C. J., having disqualified himself did not participate.

OPINION

LARSON, Justice.

The plaintiff, hereinafter called the Traction Company, brings this action for a statutory review, pursuant to Section 76-6-16, R. S. U. 1933, of a report and order of the defendant Public Service Commission of Utah, hereinafter called the Commission, issuing a certificate of convenience and necessity to Airway Motor Coach Lines, Inc., hereinafter called the "Airways," to render service as a common carrier of passengers between Salt Lake City and some nine smaller communities in the south end of Salt Lake County. On January 24, 1940, Airways filed with the Commission its application for a certificate of convenience and necessity to render the service authorized by the above order. The Traction Company in writing protested the application. At the hearing the Salt Lake City and Utah R. R. Company, and some individuals, joined in the protest. The geographical facts involved in the application and the protest briefly stated reveal: Salt Lake City, population 149,934, has for many years through the Traction Company been served by an electric street railway, and later by motor bus service and in connection with that service it for many years prior to 1933 operated a line for common carrier passenger service between Salt Lake City and Murray, Midvale, and Sandy, smaller communities lying to the south. Such service, schedules, and fares have since 1917 been under the general supervision and operated pursuant to order of the Commission. Murray, population 5,740, is seven miles south of Salt Lake City; Midvale, population 2,875, is about ten miles south and 2.5 miles west; Sandy, population 1,487, about 15 miles south of Salt Lake City. Communities in the south end of Salt Lake County, not served by bus or street railway, are Crescent, south of Sandy; West Jordan, west of Midvale and to the south thereof; South Jordan, and Riverton, and Taylorsville, about three miles west of Murray. Airways were operating a bus line into Holladay, nine miles southeast, along 9th East Street into Draper, 18 miles south of Salt Lake City under a certificate previously issued.

After hearing the Commission filed its findings and order granting the certificate, called in the files "Report and Order of Commission." The Traction Company seeks review alleging:

A. That the Commission failed to make findings of fact on issues material to the hearing.

B. That some of the findings of fact are not supported by any substantial evidence.

C. That the Commission acted contrary to law and in an arbitrary and capricious manner. We note them seriatim.

A. Complaint is made that the Commission did not make findings as to the extent of existing service being rendered by the Traction Company into the territory affected by the application; as to whether such service is inadequate, and if so, in what particulars it is inadequate; and as to whether or not the Traction Company is willing to render more service. As to territory not being served by the Traction Company it is argued that there are no findings as to what service is necessary and convenient to such territory, and as to whether the Traction Company is now ready and willing to render such service.

The Commission expressly found that the Traction Company "operates a bus service southward on State Street serving Murray, Midvale, and Sandy, on a schedule of 22 1/2 minutes during peak periods, and 45 minutes at other times" and that the "Salt Lake and Utah R. R. Corporation operates in the territory adjacent to Redwood Road [through the west side of Salt Lake Valley] with five trains north into Salt Lake City and five trains south each day." Of course the Commission need not descend to such details as to find the number of people riding each bus or train daily. The Commission did find that the new service would stimulate the use of public carriers rather than private cars and that such service as the Airways would give would meet the demands of the public more adequately. It found that the territory above set forth as without bus service is in need of bus service both intercommunity, and into Salt Lake City, such as Airways offers it. It found that this new service was in the public welfare; that it would tend to develop new homes and new enterprises in the territory beyond Salt Lake City limits, and that general development of that area would be promoted and stimulated by the new service. Such are proper matters for the Commission to consider. Mulcahy v. Public Service Commission, 101 Utah 245, 117 P.2d 298. It found that the part of the territory to be served by the Airways is new territory being pioneered; and that the roads are not overburdened with traffic, and the new service will not interfere with the use of the roads by the general public. It found that new service is needed, at least to the extent set forth in the application, and therefore to that extent the service now rendered is inadequate. It found that the Airways permit will not substantially detract from, nor impair existing common carrier service; that it will not be detrimental to the people of the State of Utah or the localities to be served. These findings are not set forth in the detail and particularity used by courts of law whose judgments determine ultimate rights of life and property, title, nor need they be so definite nor orderly. These determinations of the Commission involve questions of license, or privilege between the sovereign people and the individual who seeks to obtain or enjoy such right or privilege in the common good. The welfare of the public is the paramount issue. These rights are given and regulated to protect the people generally and to insure an opportunity for all individuals, and each community, to grow and develop and assure its inhabitants the most complete and abundant life possible, commensurate with equal privileges for all others. Mulcahy v. Public Service Commission, supra; North Bend Stage Line v. Denney, 153 Wash. 439, 279 P. 752; Campbell v. Illinois Commerce Commission, 334 Ill. 293, 165 N.E. 790. Without discussing at this point the question as to whether and to what extent the Commission is required to make finding on all matters which may be disputed or inquired into at the hearing, the findings are clearly sufficient to cover all points urged except that there is no finding as to whether the Traction Company is willing to render the new or added service now to be performed by the Airways. This specific point will be disposed of by what is said later in connection with another question.

B. It is next urged that four findings of the Commission are not supported by any substantial evidence. Two of the statements claimed to lack support in the evidence have to do with the matter of rates, one historical in nature, and the other a comparison in percentage of the difference between the rates now charged by the Traction Company and the corresponding schedule proposed by the Airways. The historical recital is not made as a finding of fact but merely to indicate why the Commission views the rate structure as entering into consideration of the question as to this permit. The argument as to the other one admits a very substantial difference in rates as shown by the evidence but argues that in one instance the percentage difference is not as great as the figure recited by the Commission. The variance in the percentage may be accounted for by the method of computation. If the difference is figured as percentage of Traction Company charge the result differs from that reached when figured as percentage of the proposed Airways charge for the service. Complaint is next made that the finding, "The granting of this application will not substantially detract from nor impair existing common carrier service * * *" lacks support in the evidence. The Commission found, and there is evidence to support it, that the more frequent trips, the lower fares, the type of service, the enlarged territory served, and such factors would stimulate and increase the volume of common carrier traffic. There is also evidence to show, and a finding that the rate structure and the advantages of transfer will be such as to probably keep for the Traction Company most of its business from people who ride regularly. The law does not require that the revenues of an operating company must be guaranteed at its existing figure before another company may enter the field. We think it unnecessary to review each of the matters considered and found in the report of the Commission. The order may still be valid though the correctness of certain findings cannot be sustained. The ultimate question is whether there was substantial evidence on all points essential to support the order of the Commission. Application of Dakota Transportation, (S. D.), 291 N.W. 589. We cannot say that the finding...