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LONG MOTOR LINES v. S.C.P.S.C.

May 13, 1958

E. L. LONG MOTOR LINES, INC., FULLER MOTOR LINES, INC., HUCKABEE TRANSPORT CORP. AND R.D. NILSON, DOING BUSINESS AS NILSON MOTOR EXPRESS, APPELLANTS,
v.
SOUTH CAROLINA PUBLIC SERVICE COMMISSION, RESPONDENT.



Per curiam.


   The order and decree of Judge Steve C. Griffith follows:
This matter comes before the Court for hearing upon the merits and in response to a Rule to Show Cause.

In the Complaint it was alleged and claimed that theretofore the South Carolina Public Service Commission issued its Order under date of February 27, 1957, amending the certificate of convenience and necessity theretofore held by one Ashley Gardner so as to authorize him to haul "steel and galvanized pipe, asbestos siding, and roofing materials" in addition to the other items covered by said certificate, and that under the evidence taken at a hearing such Order was arbitrary and invalid.

The defendant South Carolina Public Service Commission, by way of Answer and Return, alleged, first, that there was a fatal defect of parties, and further that the said Order of the Commission was amply supported by the evidence, was reasonable, and should be sustained.

The matter was heard upon the pleadings and upon the record of the proceeding before the South Carolina Public Service Commission.

At the outset of plaintiff's argument, both oral and written, it was claimed that the Order of the Commission involved was fatally defective in that it did not contain any specific findings of the elements necessary to support the grant of such authority.

However, it appears from the record that no such contention or claim was made either in the Petition for Rehearing filed with the Commission or in the Complaint upon which this action was based. Moreover, while it might be better practice for the Commission to make such specific findings on the issues involved, there is no statute or provision of law in South Carolina requiring any such findings in orders by the Public Service Commission relative to certificates of convenience and necessity for motor carriers.

Also, the specific finding of the Commission in its Order to the effect that "from the testimony taken and facts presented it appears that the application should be granted" may be taken as embracing all the preliminary and detailed findings necessary to support its Order. Compare: Beard-Laney, Inc., v. Darby, 213 S.C. 380, 49 S.E.2d 564, at page 568.

The Order involved in this case was issued by the Commission in pursuance of the authority expressly granted to it by the Legislature and in the exercise of the police power of the State.

This case must be considered in the light of the principle that Orders of the Commission on matters of this sort are presumed to be valid and will not be set aside unless shown to be arbitrary in the sense that no two reasonable men could differ thereabout. Pee Dee Electric Cooperative, Inc., v. Public Service Commission, 229 S.C. 155, 92 S.E.2d 171; Beard-Laney, Inc., v. Darby, 213 S.C. 380, 49 S.E.2d 564; State ex rel. Daniel v. Broad River Power Company, 157 S.C. 1, 153 S.E. 537; State ex rel. Public Service Comm. v. Atlantic Coast Line Railroad Company, 222 S.C. 266, 72 S.E.2d 438; Atlantic Coast Line Railroad Company v. Public Service Commission, 225 S.C. 196, 81 S.E.2d 357; Atlantic Coast Line Railroad Company v. Public Service Commission, 226 S.C. 136, 84 S.E.2d 132.

"A Commission's order, made pursuant to legislative authority or in the exercise of the police powers of the State is subject to judicial correction only insofar as it might be held, as a matter of law, to embody arbitrary or capricious action. Bluefield Telephone Co. v. Public Service Commission, 102 W. Va. 296, 135 S.E. 833; Annotation 79 L.Ed. 967. The exercise by a state of its police powers will not be interfered with by the Courts unless such exercise is of an arbitrary nature having no reasonable relation to the execution of lawful purposes. Jones v. City of Portland, 245 U.S. 217, 38 S.Ct. 112, 62 L.Ed. 252, L.R.A. 1918C, 765. A Court cannot substitute its judgment for that of a public service commission upon a question as to which there is room for a difference of intelligent opinion and will not set aside an order of a public service commission merely upon the conception of the Court as to the wisdom or expediency of the order. Simpson v. Shepard (Minnesota Rate Cases), 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511, 48 L.R.A., N.S., 1151; Southern Pac. Co. v. Campbell, 230 U.S. 537, 33 S.Ct. 1027, 57 L.Ed. 1610; 43 Am. Jur. 721, Sec. 225, Public Utilities and Services.

"Orders of Commission are presumptively just and findings of fact are prima facie correct. State ex rel. Public Service Commission v. Atlantic Coast Line Railroad Company, 222 S.C. 266, 72 S.E.2d 438, at page 443; Southern Railway Company v. Public Service Commission, 195 S.C. 247, 10 S.E.2d 769, at pages 773-774; State ex rel. Daniel v. Broad River Power Co., 157 S.C. 1, 153 S.E. 537, affirmed 281 U.S. 537, 50 S.Ct. 401, 74 L.Ed. 1023; 282 U.S. 187, 51 S.Ct. 94, 75 L.Ed. 287." Quoted from Atlantic Coast Line Railroad Co. v. Public Serv. Comm., 226 S.C. 136, 84 S.E.2d 132, 135, 136.

In the case of Pee Dee Electric Cooperative v. Public Service Commission, 229 S.C. 155, 92 S.E.2d 171, 174, the South Carolina Supreme Court in upholding an order of the Public Service Commission granting a certificate of convenience and necessity to the Carolina Power and Light Company instead of to the Pee Dee Electric Cooperative, said:

"In our consideration of the issues here presented the governing principle, well settled by many decisions of this court, is that orders of the Public Service Commission issued under the powers and authority vested in it have the force and effect of law; that the Commission's findings of fact are presumptively correct and its orders presumptively reasonable and valid; that this court cannot substitute its judgment for that of the Commission upon a question as to which there is room for a difference of intelligent opinion; and that, therefore, an order of the Commission such as is here involved will not be set aside except upon a convincing showing that it is without evidence to support it or that it embodies arbitrary or capricious action as a matter of law. Atlantic Coast Line R. Co. v. Public Service Commission, 226 S.C. 136, 84 S.E.2d 132."

So considered, it seems clear to this Court that the Commission's Order here complained of cannot be considered arbitrary, but on the other hand was amply ...


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