Wisinger v. Stewart

• Decision Date: 17 October 1949
• Docket Number: 4-8924
• Parties: Wisinger v. Stewart
• Court: Arkansas Supreme Court

223 S.W.2d 604

215 Ark. 827

Wisinger v. Stewart

No. 4-8924

Supreme Court of Arkansas

October 17, 1949

Appeal from Pulaski Circuit Court, Third Division; J. Mitchell Cockrill, Judge.

Reversed.

Ed E. Ashbaugh, for appellant.

McKay McKay & Anderson, for appellee.

OPINION

Leflar J.

Appellant Wisinger applied to the Arkansas Public Service Commission for a certificate authorizing him to operate a motor transport line for hauling heavy oil field equipment over certain named highways, with headquarters at El Dorado. At the hearing, Wisinger's evidence indicated the inadequacy of existing motor transport service of this type. Opponents gave evidence tending to show that existent services were adequate. The Public Service Commission's order found the facts to be in accordance with the evidence given by Wisinger, and a certificate was issued permitting him to operate, for the purpose stated, over the highways designated, which included highways throughout the entire South Arkansas oil fields and adjacent areas. On appeal to the Circuit Court, the holding was that there was ample evidence to sustain the finding that public convenience and necessity required an additional carrier in the vicinity of El Dorado, but that there was insufficient evidence to show such need at any place "other than El Dorado, Arkansas, and the immediate vicinity thereof," and the case was remanded to the Commission with instructions to ascertain and fix the area covered by "the immediate vicinity" of El Dorado. Wisinger appeals from that part of the Circuit Court's judgment which would thus limit the area covered by his certificate. No cross-appeal has been taken, by the opponents of the application, from that part of the Circuit Court judgment which affirmed the granting of the certificate for highways in El Dorado and its immediate vicinity.

The only question here, then, is as to the propriety of the Circuit Court judgment insofar as it in part set aside the Commission's order. Analysis of the evidence received in the case has convinced us that the Commission's original order should be reinstated.

The statute which prescribes the scope of judicial review of orders of the Public Service Commission is Act 124 of 1921, the relevant parts of which appear in Ark. Stats. (1947), §§ 73-133 and 73-134. These sections governed judicial review of orders of the old Railroad Commission. By Act 12 of 1933 the functions of the Railroad Commission were transferred to the newly created Corporation Commission, but the scope of appeal (Act 12 of 1933, § 9) remained unchanged. Act 324 of 1935 set up the Department of Public Utilities within the Commission, and prescribed a different scope of appeal from its orders, Ark. Stats. (1947), § 73-233, but made no change in the law governing other appeals. Then Act 40 of 1945 abolished both the Corporation Commission and the Department of Public Utilities, combining the two agencies as the present Public Service Commission. The Act of 1945, however, made no change in the existent law as to judicial review. Fortunately or unfortunately, the law was left in the situation of providing one rule for review of orders issued in cases jurisdiction over which was inherited by the new Commission from the Department of Public Utilities, and another rule for cases the jurisdiction in which was inherited from the old Corporation Commission and the Railroad Commission. (For a study of this entire matter, see the Comment on Judicial Review of Findings of the Arkansas Public Service Commission in 2 Ark. L. Rev. 67.)

The guiding principles of judicial review applicable to appeals such as this one have been stated several times. They are:

"A. This court tries this case de novo, and renders such judgment as appears to be warranted and required by the testimony. . . .

"B. The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required." Santee v. Brady, 209 Ark. 224, 227, 189 S.W.2d 907, 909; quoted in Arkansas Motor Freight Lines v. Batesville Truck Line, 214 Ark. 448, 216 S.W.2d 857.

C. ". . . it must be remembered that we are dealing with the finding of a tribunal erected by the Legislature for the special purpose of investigating and determining matters of the nature here involved; and the finding of such a tribunal on a fact situation may not be upset by the courts unless the finding is clearly against the weight of the testimony." Arkansas Express, Inc. v. Columbia Motor Transport Co., 212 Ark. 1, 7, 205 S.W.2d 716, 719.

A point not to be lost sight of here is that de novo review by the courts, including this Court, must not proceed as though the Public Service Commission did not exist and had never held a hearing. A hearing has been held, and the Commission which held the hearing has had the advantage of seeing and hearing the parties and witnesses face to face whereas the Circuit Court and this Court review the evidence from the record only. "Where a matter is heard and decided by an administrative body such as the Public Service Commission, an order made by it...