264 Wis. 65 | Wis. | 1953
Stated in simple terms, West Shore Express, Inc. (hereinafter called “West Shore”), has previously been authorized as a common carrier to transport cargo across an area but not to pick up or deliver goods within it. Voeks is a common carrier having authority to make collections and deliveries inside the territory and his authorized routes connect at various places with the routes of West Shore. If a carrier has freight destined for delivery outside its authority but within that of another it may arrange for such delivery by the other connecting carrier. Such connecting service is known as joint-line service. When the carriage is performed by a single agent who possesses a single authority to complete it from collection to delivery of the freight, it is known as single-line service. Single-line service is preferred by shippers and there are a number of carriers with single-line
The respondent West Shore applied only for an assignment of Voeks’ authority and submits that its application is governed by sec. 194.25 (2), Stats., which declares:
“(2) No right, privilege, certificate, or license under the provisions of this chapter shall be sold, assigned, leased, transferred, or mortgaged either by voluntary or involuntary action, except after a finding by the commission that the same is not against the public interest.” (Italics ours.)
Sec. 194.23 (1), Stats., provides that if approval of an amendment to an existing certificate is sought which involves the establishment of service at any city or village, the approval may be given or withheld as the public interest may require, upon a finding by the commission of public convenience and necessity. West Shore did not attempt to show to the commission that public convenience and necessity allowed it to have Voeks’ authority. It contends that the application is for an assignment of Voeks’ rights, involving no enlargement of the rights of anyone, and asserts that commission approval is mandatory if such assignment is not against the public interest. On the other hand, the commission submits that possession by West Shore of Voeks’ authority for local receipt, carriage, and delivery of freight necessarily changes West Shore’s former authority for joint-line service with Voeks into authority for West Shore’s single-line service to the points formerly served by Vóeks; that the substance of the application, not the form, must govern, and since the substance is for a new operating right the applicant must establish public convenience and necessity. It concludes that to grant the application without such proof is against the public interest.
The commission refused approval but did not render its decision and order for more than sixty days after the con
“(2) Notwithstanding the provisions of chapter 227 the commission, when passing upon an application for a certificate, license, or amendment thereon as provided for in this chapter, may, in making its decision thereon, rely on an oral or written summation of the record made by the person who has heard the testimony. ■
“(3) The commission shall make its finding and issue its order on any such application within sixty days after submission of all evidence' and after the date set for the filing of briefs or oral argument, whichever is later, submitted upon behalf of any party to such case. If the commission shall fail to make its finding and issue its order within the time herein prescribed, a grant of the certificate, license, or amendment thereto shall thereupon issue by operation of law.”
The commission attempts to avoid a statutory grant of West Shore’s application under this section by reliance upon the form of the application which was for approval of an assignment, only, contending that thus it is not governed by the time limit of the above statute which deals with an original application or with amendments of existing authorities.
It is clear that the commission cannot win this particular appeal no matter how we construe West Shore’s application. If we agree with the commission that, in spite of the language of the application which asked only for approval of an assignment of Voeks’ authority, there is actually an application for an amendment of West Shore’s authority, giving West Shore new single-line rights then, of course, the commission was correct in requiring West Shore to satisfy the call of sec. 194.23 (1), Stats.; but in that case sec. 194.14 (2) and (3) must be observed and the result of delay in decision is a statutory grant of the authority contemplated by the application. On the other hand, if the commission is correct in its argument that sec. 194.14 (2) and (3) does not apply
We think it desirable, however, to consider the question with which the commission was primarily concerned.
When Clintonville Transfer Line v. Public Service Comm. (1951), 258 Wis. 570, 46 N. W. (2d) 741, was decided, the commission had a rule (72 (f)) stating:
“If an intrastate common motor carrier certificate is to be assigned to another intrastate common motor carrier which operates a connecting route and if it is proposed to operate the combined systems as a single through route, the application must be supported by evidence that public convenience and necessity require the through service.”
We held that this rule was invalid because it compelled the applicant to satisfy the requirements of the statutes governing both amendments and assignments of authorities which was not a statutory requirement in an assignment proceeding. We said, further, that the commission must approve an assignment if it is not against the public interest. No doubt the commission has abrogated rule 72 (f) but we consider that it goes even further than such void rule when it contends that if by assignment authorities to move traffic over two connecting routes are to be owned by one person, firm, or corporation, proof of public convenience and necessity must be made before such an assignment may be approved. In the Clintonville Case, supra, the applicant sought
We consider the Clintonville Case, supra, is a more drastic denial than the instant one of the commission’s jurisdiction to demand proof of-public convenience and necessity where approval is sought for the assignment of the authority of one carrier to a carrier with a connecting line, for the Clintonville applicant expressly stated that it was its purpose to conduct single-line operations while here the applicant told the commission that it would maintain the former joint-line service between the two routes. The commission took the testimony of other operators and concluded that such joint-line operation was impossible, — it said “as a matter of law a single carrier cannot joint-line with itself,” — and because West Shore did not then make the proof required for approval for an amendment to its certificate, denied the application. We think that the Clintonville Case, supra, controls the present situation and approval of an assignment of Voeks’ authority was already established as not being against the public interest, and West Shore had previously been approved as a carrier fit to serve the public. If, then, in combining the two systems, West Shore does conduct what the commission considers single-line operation the commission has the same power to interfere that it has when any carrier operates outside its authority; while if West Shore’s operations actually
By the Court. — Judgment affirmed.