Weirton Ice & Coal Supply Co. v. Public Service Commission , 161 W. Va. 141 ( 1977 )

Caplan, Chief Justice:

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) 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 requires” 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 inap-posite 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, 24A-3-3(a), 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) 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 of detailed findings and reasons in its order. Under the provisions of W.Va. Code, 24A-8-1, upon an appeal of such order, the Commission “shall file with the court before the day fixed for the final hearing a written statement of its reasons for the entry of such order”. This statement of reasons together with access to a transcript of all the evidence, including exhibits, permits the appellate court to fully review the Commission’s ruling.

The Commission, before granting a certificate to a common carrier by motor vehicle “shall take into consideration existing transportation facilities in the territory.” W.Va. Code, 24A-2-5. The appellants appeared in protest at the Commission hearing and were afforded the opportunity to present evidence pertaining to the existing transportation facilities. In fact, such evidence was presented in some detail by said protestants. The Commission, upon review of all the evidence, granted the certificate, necessarily finding that the existing transportation facilities were not “reasonably efficient and adequate”. To require the Commission to state in its order that the adequacy of such facilities was considered would add nothing, nor should the order have to contain a lengthy recitation of evidence on the subject. The record is there for all to see and evaluate.

The protestants complain that they have not been afforded the opportunity to remedy any inadequacy or insufficiency in their service, if the Commission found such inadequacy or insufficiency, as required by W.Va. Code, 24A-2-5. Where pertinent that statute provides: “... 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 ... such certificate holder shall be given reasonable time and opportunity to remedy such inadequacy ... before any certificate shall be granted to an applicant proposing to operate over such route or routes as a common carrier.”

It is noted that the above quoted statute refers to those carriers operating “over any route or routes”. The Commission here recognized the distinction between “route” carriers and “territory” carriers. This Court, in McKee v. Public Service Commission, 124 W. Va. 10, 18 S.E.2d 577 (1942), acknowledged and discussed the difference between a carrier operating over a route and one operating in a territory. That Court said, in relation to the above statute, “only common carriers over route or routes are given this particular form of protection ... the protestant, not holding a certificate of convenience and necessity to operate over a route, regular or irregular but only over a territory, was not entitled to an opportunity to remedy any inefficiency or inadequacy existing at the time of the Commission’s order granting such certificate to the applicant ...

The opportunity to remedy any inadequacy in existing service, as provided in W.Va. Code, 24A-2-5 (a) 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. The applicant here is not seeking a certificate to operate over a specific route. Consequently, the protestants were not entitled to the “opportunity to remedy such inadequacy”, as provided in the statute.

Further, we find without merit in this case the appellant’s complaint that the Commission’s order was invalid by reason of inadequate notice of the final hearing. The purpose of notice, and its only purpose, is to afford one the opportunity to attend and participate in a hearing or other proceeding; to afford one the opportunity to protect his interests. No great formality is required, it being sufficient if one has actual notice. Higgins v. Boston Elevated Railway Co., 214 Mass. 335, 101 N.E. 992 (1913); State ex rel. Murphy v. Aronson, (Mo. 1959), 330 S.W.2d 140. These appellants were notified of the hearing and all of them appeared or were represented at such hearing. They were thus afforded the opportunity to present evidence, cross-examine witnesses and to protect their interests. In the circumstances of this case, the failure of the notice to strictly conform to the order of the Commission is not of such consequence as to warrant a reversal. These appellants cannot be heard to complain about insufficient notice.

The other assignments of error have been considered and are found to be without merit. Being of the opinion that the finding of the Commission is not contrary to the evidence; is not without evidence to support it; is not arbitrary; or does not result from a misapplication of legal principles, we affirm the order of the Commission.

Affirmed.