Yellow Cab Co. of Providence v. Public Utility Hearing Bd.

• Decision Date: 18 May 1965
• Docket Number: No. 1683,1683
• Citation: 99 R.I. 644,210 A.2d 128
• Parties: YELLOW CAB COMPANY OF PROVIDENCE v. PUBLIC UTILITY HEARING BOARD. M. P.
• Court: Rhode Island Supreme Court

Page 128

210 A.2d 128

99 R.I. 644

YELLOW CAB COMPANY OF PROVIDENCE v. PUBLIC UTILITY HEARING BOARD.

M. P. No. 1683.

Supreme Court of Rhode Island.

May 18, 1965.

Albert J. Hoban, Providence, for appellant Yellow Cab Co.

J. Joseph Nugent, Atty. Gen., Joseph L. Breen, Chief Special Counsel, for appellee Public Utility Hearing Board.

DiMascolo & DiPetrillo, Anthony DiPetrillo, Providence, for applicant Whitehall Taxicab Co.

JOSLIN, Justice.

This is an appeal under G.L.1956, § 39-5-14, by the Yellow Cab Company of Providence from a decision and order of the Public Utility Hearing Board. The cause came to the board on appeal under § 39-5-9 from a decision and order of the public utility administrator. The board found that the applicant, Whitehall Taxicab Company, was qualified for the operation of taxicabs and that the public convenience and necessity required additional service. It granted the applicant four certificates of public convenience and necessity for the operation of taxicabs within the city of Providence and amended three certificates previously issued so as to permit the operation of taxicabs within the cities of Providence and Cranston as well as in the town of Johnston. The grounds of this appeal are that the board's decision is against the weight of the evidence and that its order is both unlawful and unreasonable.

The appellant's challenge to the order on the grounds of unlawfulness and unreasonableness is premised initially on the alleged noncompliance by the board with the requirements of §§ 42-35-10 and 42-35-12. Those sections, which set up procedural standards for proceedings before certain administrative tribunals, are included within the Administrative Procedures Act which took effect on January 1, 1964 except as to proceedings pending on June 30, 1963. See § 42-35-18. For the reason that this application was filed prior to June 30, 1963, we expressly refrain from passing either on the issue of whether the board complied with the requirements of §§ 42-35-10 and 42-35-12, or on the question raised by the appellant of whether original jurisdiction to review decisions and orders of the board has, under the Act, been vested exclusively in the superior court.

As a further basis for its attack on the ground of lack of reasonableness and legality, appellant argues that the board referred only passingly in its decision to the testimony heard by it and that in substance it merely rewrote the findings and orders of the administrator. That conduct, it argues, warrants the conclusion that the board acted in a reviewing capacity, rather than as an independent quasi-judicial body charged under § 39-5-10 with hearing appeals 'de novo as to both the law and the facts' and with determining the issues 'based upon the law and upon the evidence presented before it * * *.'

The similarity in the two decisions to which appellant attaches significance arises, however, not for the reason suggested, but because the board heard the oral testimony of the two witnesses who appeared before the administrator and additionally had before it as evidence, as permitted by § 39-5-13, the transcript of the proceedings before him. In those circumstances some similarity in the factual recitals in the respective decisions is to be expected. It should be observed, moreover, that the board also referred in its decision to the testimony of witnesses who did not appear before the administrator. In our opinion, the board neither misconceived the statutory obligation imposed upon it, nor failed in its duty to hear and determine the appeal as a de novo proceeding.

The appellant next contends that the decision is contrary to the weight of the evidence. By § 39-5-14 findings of the board are deemed to be prima facie true and one attacking a decision for the reason here advanced is burdened with establishing that the board was clearly wrong in that it overlooked or misconceived some material evidence which, if properly assessed, would have caused the evidence to preponderate against the decision. Hill Road Publishing & News Co. v. Public Utility Hearing Board, R.I., 190 A.2d 729; Berberian v. Public Utility Hearing Board, 88 R.I. 207, 145 A.2d 202.

The factual issue before the board was whether the applicant had established by probative evidence that the public convenience and necessity required the issuance of new certificates. Capaldo v. Public Utility Hearing Board, 71 R.I. 245, 43 A.2d 695; Yellow Cab Co. v. Public Utility Hearing Board, 79 R.I. 507, 90 A.2d 726. On that question and on sharply conflicting testimony the board found 'that the preponderance of the evidence...