Voight v. Washington Island Ferry Line, Inc.

• Decision Date: 01 July 1977
• Docket Number: No. 75-304,75-304
• Citation: 255 N.W.2d 545,79 Wis.2d 333
• Parties: Charles W. VOIGHT, d/b/a Charles Voight Marine, Petitioner-Respondent, v. WASHINGTON ISLAND FERRY LINE, INC., Intervenor-Appellant, Public Service Commission of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 545

255 N.W.2d 545

79 Wis.2d 333

Charles W. VOIGHT, d/b/a Charles Voight Marine, Petitioner-Respondent, v. WASHINGTON ISLAND FERRY LINE, INC., Intervenor-Appellant Public Service Commission of Wisconsin, Respondent.

No. 75-304.

Supreme Court of Wisconsin.

Argued March 28, 1977.

Decided July 1, 1977.

Paul C. Gartzke, Madison, Herman J. Leasum, Sturgeon Bay and Bieberstein, Cooper, Bruemmer, Gartzke & Hanson, Madison, on the briefs for intervenor-appellant.

Robert J. Kay and Geisler & Kay, Madison, on the brief for petitioner-respondent.

DAY, Justice.

On August 11, 1972 respondent Charles W. Voight, d/b/a Charles Voight Marine (referred to as the applicant), applied to the Public Service Commission (PSC) for certification under sec. 195.45, Stats.1973 ¹ to operate his cruise boats as a common carrier between Gills Rock on the northern tip of Door County and Washington Island. Appellant Washington Island Ferry Line, Inc. (the objector), which already was certified to and did operate car ferry passenger and freight service between Gills Rock and Washington Island, objected to the application. After hearings before an examiner and argument before the Commission, the Commission on December 27, 1974, contrary to the recommendations of its examiner, denied the application with one dissenting vote. Upon the Commission's denial of a rehearing the applicant commenced proceedings in the circuit court for Dane County, which, on July 21, 1975, reversed the order of the Commission and remanded for further proceedings. The objector appeals from the judgment of the circuit court. The Commission did not appeal.

The issue which we deem dispositive on this appeal is whether the PSC's decision adequately set forth the basis on which it denied the application for a certificate of public convenience and necessity.

The applicant's amended application for a certificate requested authorization for only limited service between Gills Rock and Washington Island. Under the amended application, service would be provided only between May 15 and October 15 of each year. Only round-trip tickets, available at Gills Rock and good only on the day of purchase, would be sold. As so restricted, applicant's proposal was to prove a service aimed chiefly at tourists.

The Commission found the applicant "fit, willing and able" to perform the requested operations. It nevertheless denied the application, finding that the objector's year around operations were vital to the welfare of the people of Washington Island and would be seriously affected by competition during the profitable summer months.

Washington Island Ferry Line, Inc., the objector, was incorporated in 1962, though the ferry service has been operated by its present president, Arni J. Richter, and his father since 1940. It operates a scheduled service between Washington Island and the mainland twelve months a year, seven days a week, subject to interruptions due to the weather. The objector received a certificate of public convenience and necessity from the PSC on December 1, 1970. The line has three boats, the C. G. Richter, the Errarbakki and the Voyageur, each of which is designed to transport motor vehicles, freight and passengers. The Voyageur and the Errarbakki can each carry 148 passengers and the C. G. Richter can carry ninety-eight passengers, though the boats do not have seating capacity for that many passengers. Passenger traffic is a significant source of revenue to the objector. According to calculations it furnished to the Commission, percentage of total gross revenues derived from passengers averaged between forty-seven and fifty percent each year from 1969 to 1972. The bulk of this passenger traffic, approximately eighty-five to eight-eight percent, occurred in the months of May through September.

Mr. Richter testified the ferry line's transport of freight during the winter months was declining and if the applicant is authorized to perform the requested service the ferry line will have to cease winter operations.

Testimony before the hearing examiner emphasized the vital role objector's service plays in the Washington Island economy. Seventeen witnesses, mostly Washington Island residents, so testified. These included, for example, a mink farmer, a plumber and a contractor, each of whom testified he depended on the boats for supplies. A high school teacher and a representative of older residents also stated they needed the ferry.

The applicant operated a passenger carrying vessel, the Bounty II, since 1966. Upon enactment of C. 402, Laws of 1969, sec. 195.45, Stats., applicant unsuccessfully attempted to obtain "grandfather rights" to continue to operate between Gills Rock and Washington Island. In July, 1971 applicant put in service a second vessel, the Yankee Clipper, which operated between the mainland and the island selling only round-trip tickets. The applicant leases the Yankee Clipper from a corporation of which he is an officer, director and stockholder. One year later, the PSC ruled the applicant's service, with the exception of its evening "Sunset Cruise," was common carriage requiring a certificate under sec. 195.45. The Dane County circuit court affirmed. On August 11, 1972 the instant proceeding began when applicant applied for certification as a common carrier.

Applicant operated the Yankee Clipper from May through October in 1971 and 1972. During 1972, 5,257 passengers, mostly tourists, purchased round-trip tickets. Charles W. Voight described his "tour package" at a hearing on the application as follows. The tour starts out at Gills Rock on the Yankee Clipper, which seats ninety-nine passengers, and goes to Washington Island. During the cruise a lecture concerning local history and points of interest is given over the boat's speaker system. A narrated bus tour is given on the island. Alternatively, the applicant rents out bicycles and supplies picnic tables on the island. Passengers then may take another boat, the Karfi, not operated by the applicant, to Rock Island State Park. Passengers are then returned to Gills Rock on the Bounty II. The minimum service offered is the round-trip to and from Washington Island. Other parts of the tour are optional. Mr. Voight further testified the Yankee Clipper does not transport passengers originating on Washington Island nor does it transport property other than luggage, camping equipment and similar items. Neither the Yankee Clipper nor the Bounty II carries motor vehicles.

A number of witnesses testified before the hearing examiner in support of the application. They included restaurant and motel owners and others connected with the tourist industry in Door County.

May 31, 1974 hearing examiner James Wolter issued his recommendations. In his "Proposed Decision" he said serious curtailment of the services offered by objector's ferry line "would be a disaster to Washington Island and the tip of Door County." However he found no such curtailment would result by granting the application. He said the objector made only one round-trip per day during the winter, a schedule which had to be maintained to keep a channel open through the ice. He noted objector would have to obtain PSC approval to discontinue service entirely. The examiner also said passenger and vehicular traffic on the ferry line had been increasing in the winter months and with the popularity of winter sports and year around facilities on Washington Island, this travel was likely to continue. He also noted the ferry had a four-year mail contract for $10,000 a year. Finally, he stated, "I do not understand why the summer traffic should pay for the transportation needs of the 400 permanent residents on Washington Island during the winter."

The hearing examiner then recommended formal findings of fact, conclusions of law and an order. The recommended order granted a certificate authorizing scheduled service between May 15 and October 15 of each year, tickets to be sold only on a round-trip basis at Gills Rock. The recommended order also provided for review of the certification by the Commission or by any interested party within three years of the date the order is issued.

The Commission rejected the recommended order. However, the Commission did adopt the findings of fact proposed by the examiner with certain changes.

In finding number three the PSC deleted the last sentence, underlined below, adding nothing in its place.

"3. Applicant operated the Yankee Clipper between Gills Rock and Washington Island during the summer season (May through October) in 1971 and 1972. During 1972, 5,257 passengers purchased round-trip tickets on the Yankee Clipper for the cruise offered by the applicant between Washington Island and Gills Rock. Almost all of the passengers on these trips were tourists. Door County and Washington Island are heavily dependent upon the tourist industry and the tourist industry has been expanding in this area each year. The applicant's service during 1971 and 1972, and his proposed service herein are planned to meet the needs of tourists to the area and it is his intention to transport only passengers and their personal belongings. The applicant's operations will be an added tourist attraction and will tend to bring tourists and additional revenue to the area."

Finding number four described objector's ferry service. The Commission deleted the following suggested paragraphs:

"The operations of the Washington Island Ferry Line will not be seriously affected by the proposed operations of the applicant as amended herein.

"A scheduled passenger service between Washington Island on the one hand and Gills Rock on the other hand as proposed by the applicant in his amended application herein, is in the public interest and required by public convenience and necessity provided that said grant of authority be subject to reopening and reconsideration by the Commission, either on its own motion or upon petition of some interested ...