Opinion
February 17, 1944. —
March 14, 1944.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellant there was a brief by the Attorney General and H. T. Ferguson, assistant attorney general, and oral argument by Mr. Ferguson.
Joseph Lieberman of Milwaukee, for the respondents.
Action commenced December 19, 1941, by plaintiffs-respondents against defendant-appellant, pursuant to the provisions of sec. 196.41, Stats., to vacate an order made and entered by the defendant commission on April 19, 1941, which order denied the application of the plaintiff Gordon P. Bush to amend his contract motor-carrier license, on the ground that the proposed operations by the applicant had not been shown to be in the public interest and required by public convenience and necessity, nor consistent with the public interest and required by the convenience and necessity of the shipper. There was a rehearing before the commission on June 16, 1941, and on October 20, 1941, the commission affirmed its order of April 19th.
The court found in part as follows:
(1) That the Farmers Co-operative Equity Union Shipping Association is a corporation organized and existing under and by virtue of ch. 185, Stats., and is engaged in the business of marketing on a co-operative basis the products of its members.
(2) That plaintiff Gordon P. Bush is engaged in the business of transporting farm products, and is the licensee of contract motor-carrier license LC-13611, issued by the Public Service Commission of Wisconsin.
(3) That Bush made application to the Public Service Commission to amend his contract motor-carrier license for the purpose of procuring authority to haul livestock for the Farmers Co-operative Equity Union Shipping Association to Madison and Milwaukee.
(4) That the commission denied the application by order dated April 19, 1941, upon a finding "that the performance of the proposed operations by the applicant has not been shown to be in the public interest and required by public convenience and necessity nor consistent with the public interest and required by the convenience and necessity of the shipper." After rehearing the commission affirmed its denial by order dated October 20, 1941.
(5) That the evidence in the record fails to show that there is not a reasonable need apparent for the use of the service.
(6) That the evidence fails to show that the proposed service will interfere unduly with any common carrier.
(7) That the evidence fails to show that the proposed service will unduly burden the public highways of Wisconsin.
(8) That plaintiff Farmers Co-operative Equity Union Shipping Association has reasonable need for the service proposed to be rendered by plaintiff Gordon P. Bush and that such service will not unduly interfere with any common carrier, nor unduly burden the public highways of this state, and that such service is required by convenience and necessity of plaintiff Farmers Co-operative Equity Union Shipping Association.
(9) That the evidence offered by the commission in support of its motion to remand the proceedings to it for further proceedings is irrelevant and in no way affects the merits of plaintiff's right to a license.
As conclusions of law the court found:
"(1) The findings of fact made by the commission are not supported by the evidence in the record herein.
"(2) The orders of the commission dated April 19, 1941, and October 20, 1941, denying the application of Gordon P. Bush, are unlawful and unreasonable and should be vacated and set aside.
"(3) The motion of the commission for a remand of the proceedings to it should be denied."
Upon the foregoing findings and conclusions, judgment was entered December 10, 1942, adjudging that the orders of April 19 and October 20, 1941, were unreasonable and unlawful, and vacating and setting aside said orders; from which judgment the Public Service Commission appeals.
The appellant makes the following statement in its brief:
"If, as appears to be the law under the decision in the United Parcel Case, supra [ United Parcel Service v. Public Service Comm. 240 Wis. 603, 4 N.W.2d 138] the only evidence which the commission should consider in arriving at its decision was the effect of said plaintiff's proposed operations upon congestion of the highways and the service of `common motor carriers' and of steam and electric railways, it is frankly conceded that the evidence before the trial court showed no such effects, and the finding of that court, as to the unreasonableness of the order, is supported by the dear preponderance of the evidence. In fact, there is no evidence to show that such proposed operations would unduly congest the highways. Neither does the evidence indicate that there is any `common motor carrier' or steam or electric railway which would be affected by such operations."
The appellant contends that the doctrine as announced in United Parcel Service v. Public Service Comm., supra, is erroneous. Appellant urges that the decision in that case be reconsidered and overruled. We have given the case further consideration and adhere to the decision therein. It rules the instant case in favor of respondents, particularly in view of the frank concession made in appellant's brief, above quoted.
Upon the findings, all of which are amply sustained by the evidence, under the rule in United Parcel Service v. Public Service Comm, supra, p. 613, that "if there is a reasonable need apparent for the use of the service and if the common carrier is not unduly interfered with nor the public highways unduly burdened, a case of convenience and necessity exists," the application of the plaintiff Bush to amend his contract motor-carrier license should have been granted.
By the Court. — Judgment affirmed.