33 N.W.2d 615 | N.D. | 1948
The petitioner, C.M. Hvidston, made application to the Public Service Commission for a special certificate of public convenience and necessity authorizing him to transport by motor tank trucks petroleum products in bulk between all points in North Dakota.
At the hearing upon the petition the Northern Pacific Railway Company, Great Northern Railway Company, Minneapolis, St. Paul and Saulte Ste. Marie Railroad Company, and Chicago, Milwaukee, St. Paul and Pacific Railroad Company, common carrier railroads operating within the state, appeared and entered formal protests to its allowance. Subsequent to the hearing the Public Service Commission made its order directing the issuance of a special certificate of public convenience and necessity to the petitioner, authorizing the transportation of petroleum products in bulk in tank trucks from Great Lakes Pipeline terminals at Fargo and Grand Forks "to points and places in the State of North Dakota." Later the authorization was amended to include as points of shipment origin, the immediate vicinities of the pipeline terminals as well.
The railroad carriers appealed from this order to the District Court of Cass County. Upon that appeal the District Court modified the order of the Commission and directed that the granted authorization be limited, as to points of destination of shipments, to points not situated in cities, towns or villages located upon railroads. Judgment was entered accordingly. The petitioner and the Public Service Commission have appealed from the judgment of the District Court and a review of the entire case is demanded.
The Findings, Conclusions and Order of the Commission were as follows:
From the foregoing Findings of Fact, the Commission make the following:
(a) Schedules of tariffs covering truckload and less-than truckload lots; *119
(b) Policies covering public liability, property damage and cargo insurance; and
(c) Bond covering c.o.d. shipments."
The statute governing appeals from determinations of administrative agencies is § 28-3219 ND Rev Code 1943. It reads as follows:
"The court shall try and hear an appeal from the determination of an administrative agency without a jury and the evidence considered by the court shall be confined to the record filed with the court. If additional testimony is taken by the administrative agency or if additional findings of fact, conclusions of law, or a new decision shall be filed pursuant to section 28-3218, such evidence, findings, conclusions, and decision shall constitute a part of the record filed with the court. After such hearing, the court shall affirm the decision of the agency unless it shall find that such decision or determination is not in accordance with law, or that it is in violation of the constitutional rights of the appellant, or that any of the provision of this chapter have not been complied with in the proceedings before the agency, or that the rules or procedure of the agency have not afforded the appellant a fair hearing, or that the findings of fact made by the agency are not supported by the evidence, or that the conclusions and decision of the agency are not supported by its findings of fact. If the decision of the agency is not affirmed by the court, it shall be modified or reversed, and the case shall be remanded to the agency for disposition in accordance with the decision of the court."
Upon their appeal to the district court protestants assigned error upon seven counts. One of these assignments, to wit: "Thefindings of fact are not sufficient to support the conclusions oflaw and the order made", is decisive upon this appeal. We shall therefore limit our consideration to that assignment.
Section 49-1814, ND Rev Code 1943 provides:
"Before granting a certificate to a common motor carrier, the commission shall take into consideration:
1. Existing travel upon the route of the carrier;
2. The increased cost of maintaining the highway concerned; *120
3. The effect on other essential forms of transportation; and
4. Existing transportation facilities in the territory for which a certificate is sought.
In case it appears from the evidence that the service furnished or that could be furnished by existing transportation facilities is reasonably adequate, the commission shall not grant such certificate."
The provisions of this section constitute "A restriction upon the powers of the commission in granting certificates of public convenience and necessity to motor trucks as common carriers." Tri-City Motor Transp. Co. v. Great Northern R. Co.
In the instant case the Public Service Commission made no findings (1) with respect to existing travel upon the route of the carrier, (2) with respect to the increased cost of maintaining the highways, (3) with respect to the effect the granting of the application would have on other essential forms of transportation, and (4) with respect to the possibility that the existing transportation facilities could make their service adequate. Protestants assert that the failure of the Commission to make findings of fact concerning these essentials to the granting of a certificate of public convenience and necessity, leaves its conclusions and order wholly unsupported. Petitioner, on the other hand says that the finding of the ultimate fact of public convenience and necessity is sufficient; that where the certificate *121 is granted it must be presumed that the Commission followed the law and considered and made favorable findings upon all elements essential to the granting of the application.
Section 28-3213 ND Rev Code 1943, provides in part:
". . . in a proceeding before an administrative agency, . . . the agency shall make and state concisely and explicitly its findings of fact and its separate conclusions of law, and the decision of the agency based upon such findings and conclusions. . . ."
This statute requires explicit findings. Explicit is defined by Webster's International Dictionary 2d ed as "Not implied merely, or conveyed by implication; distinctly stated; plain in language; clear; not ambiguous; express; unequivocal." The language of the statute is precise. It does not allow a construction which would permit an inference or a presumption of favorable findings upon matters not mentioned by the Commission. Furthermore, the designated findings of fact numbered III, IV, V, VI, VII, and IX (above quoted) are not findings of fact at all but are mere references to the evidence in the case and do not under the statute constitute a basis for the Commission's order. Chicago R. Co. v. Commerce Commission,
This case is therefore remanded to the district court with directions to return the case to the Public Service Commission for further proceedings conformable to law.
CHRISTIANSON, Ch. J., NUESSLE, J., and McFARLAND and GRIMSON, District Judges concur. *122