Weirton Ice & Coal Supply Co. v. Public Service Commission
| Decision Date | 20 December 1977 |
| Docket Number | Nos. 13890 and 13891,s. 13890 and 13891 |
| Parties | WEIRTON ICE & COAL SUPPLY COMPANY et al. v. PUBLIC SERVICE COMMISSION of West Virginia and Harley E. Warrick, dba Warrick Trucking, etc. DON SWART TRUCKING, INC., a West Virginia Corporation, et al. v. PUBLIC SERVICE COMMISSION of West Virginia and Harley E. Warrick, dba Warrick Trucking, etc. |
| Court | West Virginia Supreme 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.
2. Under the provisions of W.Va. Code, 1931, 24A-2-5(a), as amended, the Public Service Commission, if it finds from the evidence adduced at a hearing that public convenience and necessity require the proposed service, may grant a certificate of convenience and necessity to an applicant to render such service.
3. The opportunity to remedy any inadequacy in existing service, as provided in W.Va. Code, 1931, 24A-2-5(a), as amended, is afforded only to a common carrier holding a certificate of convenience and necessity over a route or routes and is available to such carrier only if the applicant is seeking a certificate to operate over such route or routes.
4. Where protestants have actual knowledge of a Public Service Commission hearing and participate in it, they cannot be heard to complain about insufficient notice.
Donell, DeLaMater & Hagg, W. Dean DeLaMater, Weirton, for Weirton Ice & Coal Galbraith, Seibert & Kasserman, George H. Seibert, Jr. and M. Jane Glauser, Wheeling, for Don Swart Trucking.
Clement R. Bassett, Legal Division, Charleston, for Public Service Commission.
These cases are here on separate appeals from an order of the Public Service Commission of West Virginia (Commission) which granted a certificate of convenience and necessity to Harley E. Warrick, d/b/a Warrick Trucking, to operate as a common carrier in the transportation of dirt, slag, coal and asphalt in Hancock, Brooke and Ohio Counties. The appellants were protestants at the Commission hearing and, being aggrieved by the action of the Commission, prosecuted these appeals. The same issues being involved in each case, they are consolidated for consideration and decision.
Harley E. Warrick, d/b/a Warrick Trucking, in July, 1976, filed an application with the Public Service Commission for a certificate of convenience and necessity to operate as a common carrier in the transportation of dirt, slag, coal and asphalt in Hancock, Brooke and Ohio Counties. A hearing was held on September 24, 1976, at which time the applicant presented his evidence in support of his application. The appellants, Weirton Ice & Coal Supply Company, Sam Aria Hauling & Excavating Company, James White Construction Company, Fuccy Hauling & Excavation, Inc., Don Swart Trucking, Inc., Tri-State Dump Truck Service, Inc., and Kittle Hauling & Supply protested the granting of the certificate and appeared at the hearing. They were permitted to cross-examine the applicant and his witnesses and were permitted to and did present evidence in their own behalf. The Public Service Commission, by order dated November 16, 1976, said "the Commission is of opinion and finds that the public convenience and necessity requires the service which the applicants proposes to render and that a certificate of convenience and necessity should be issued to him . . .".
Although the applicants assign several errors, the principal error relied upon is the Commission's failure to make findings of facts, conclusions of law and to assign reasons for its decision. Finding these assignments to be without merit, we affirm.
We start with the well established principle that an order of the Public Service Commission based upon findings of fact will not be disturbed unless such findings are contrary to the evidence, are without evidence to support them, are arbitrary, or result from a misapplication of legal principles. United Fuel Gas Co. v. Public Service Commission, 143 W.Va. 33, 99 S.E.2d 1 (1957) and cases cited therein.
The applicant in the instant case sought a certificate of convenience and necessity to operate as a common carrier. W.Va. Code, 1931, 24A-2-5(a), as amended, provides:
It shall be unlawful for any common carrier by motor vehicle to operate within this State without first having obtained from the commission a certificate of convenience and necessity. Upon the filing of an application for such certificate and after hearing thereon, if the commission finds from the evidence that the public convenience and necessity require the proposed service or any part thereof, it shall issue the certificate as prayed for, or issue it for the partial exercise only of the privilege sought, and may attach to the exercise of the right granted by such certificate such terms and conditions as in its judgment the public convenience and necessity may require, and if the commission shall be of the opinion that the service rendered by any common carrier holding a certificate of convenience and necessity over any route or routes in this State is in any respect inadequate or insufficient to meet the public needs, such certificate holder shall be given reasonable time and opportunity to remedy such inadequacy or insufficiency before any certificate shall be granted to an applicant proposing to operate over such route or routes as a common carrier. Before granting a certificate to a common carrier by motor vehicle the commission shall 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.
This statute clearly provides that "if the commission finds from the evidence that the public convenience and necessity require the proposed service or any part thereof, it shall issue the certificate as prayed for . . .". Upon the filing of an application for a common carrier certificate, the above quoted statute requires a hearing before the Commission and that said body thereafter, based upon the evidence, issues or denies the certificate in accordance with its view of the evidence. This is precisely what the Commission order reveals in the instant case. The order does not recite specific findings of fact but, in accordance with the requirements of the above quoted statute, it did find "that the public convenience and necessity require" the proposed service. According to the statute, this was the only finding the Commission was obligated to make in order to issue a certificate to operate as a common carrier in a territory. We so hold.
The appellants rely principally upon Mountain Trucking Co. v. Public Service Commission, W.Va., 216 S.E.2d 566 (1975) for the proposition that the Commission must, in its order, find facts or state reasons as a basis for its order, rather than make conclusory statements. Point 3, Syllabus, in Mountain Trucking, supra, reads:
Where an administrative agency is required to find facts or state reasons as a basis for its order, the order must contain findings of facts, rather than conclusory statements, so as to withstand judicial scrutiny.
This Court adheres to that decision but finds it inapposite to the instant case. In Mountain Trucking, supra, the applicant sought a permit to operate as a contract carrier, whereas this applicant applied for a certificate of convenience and necessity to operate as a common carrier. Each, a contract carrier permit and a common carrier certificate, is governed by a different statute. A contract carrier applicant, under W.Va. Code, 1931, 24A-3-3(a), as amended, has the burden of establishing "to the satisfaction of the commission that the privilege sought will not endanger the safety of the public or unduly interfere with the use of the highways or impair unduly the condition or unduly increase the maintenance cost of such highways, directly or indirectly, or impair the efficient public service of any authorized common carrier or common carriers adequately serving the same territory."
One applying for a common carrier certificate, pursuant to W.Va. Code, 1931, 24A-2-5(a), as amended, however, need only establish to the satisfaction of the Commission that public convenience and necessity require the proposed service. He is not required to assume the burden of proof imposed upon the seeker of a contract carrier permit. The former need only show an affirmative need; the latter must show, not only a need, but must show that his proposed service will not be a negative influence in certain areas. We think this is a significant difference. It should be noted that this Court reversed in Mountain Trucking, supra, a contract carrier case, for the principal reason that the applicant had not proved its case. The applicant had not proved that the granting of the permit would not impair the efficient public service of authorized common carriers serving the same territory. See Points 1 and 2 of the Syllabus in that case (216 S.E.2d 566).
While, as noted in Syllabus point three of Mountain Trucking, supra, findings of facts and reasons for the decision must be stated in the order, such findings and reasons are required only where "an administrative agency is required to find facts or state reasons as a basis for its order". We conclude, from an examination of the pertinent statutes, that the only finding necessary in a common carrier order is that "the commission finds from the evidence that the public convenience and necessity require the proposed service".
Judicial scrutiny on review of a commission order is not impeded by the lack...
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