Allen v. Fowler

407 S.W.2d 156, 219 Tenn. 60, 23 McCanless 60, 1966 Tenn. LEXIS 506
CourtTennessee Supreme Court
DecidedOctober 7, 1966
StatusPublished
Cited by1 cases

This text of 407 S.W.2d 156 (Allen v. Fowler) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Fowler, 407 S.W.2d 156, 219 Tenn. 60, 23 McCanless 60, 1966 Tenn. LEXIS 506 (Tenn. 1966).

Opinion

Mr, Justice Cresoh

[62]*62On October 22, 1964, appellee C. C. Torbett, Jr., dba City Delivery Service, made application to the Tennessee Public Service Commission for a certificate of convenience and necessity as a common carrier. Applicant sought authorization to transport household goods from Bristol, Tennessee and a 12% air-line mile radius of the corporate limits of Bristol to all points and places in Tennessee, and from all points and places in Tennessee to Bristol and a 12% air-line mile radius of the corporate limits of Bristol, Tennessee. Objection was made by the appellants. A hearing was had before a Hearing Examiner on December 10, 1964. After hearing the testimony of both sides, the Hearing Examiner submitted a report summarizing the evidence presented before him and recommending the issuance of certificate of convenience and necessity. Exceptions were filed to the Examiner’s report by the appellants. The Tennessee Public Service Commission, on March 8, 1965, considered appellants’ exceptions and, after so doing, entered an order adopting the Trial Examiner’s report in its entirety and approved granting of the application.

On April 5, 1965, the appellants filed a petition for certiorari in the Chancery Court at Nashville, Tennessee, seeking review of the order of the Public Service Commission granting appellee Torbett’s application. On April 5, 1965, a writ of certiorari was issued by the Chancery Court of Davidson County, Tennessee. On June 2,1965, appellee, Tennessee Public Service Commission, filed its answer and, on July 1, 1965, appellee C. C. Torbett, Jr., filed his answer. On December 16, 1965, the Chancellor filed a memorandum stating that he found that there was material evidence to support the findings of the Public Service Commission.

[63]*63On January 21,1966, a decree was entered dismissing the petition. Motion for a new trial was timely made by the appellants, and overruled. The appellants duly excepted and prayed an appeal to this Court under T.C.A. sec. 65-230.

The following assignments of error are made by the appellants in this Court:

“Error No. 1 (Fact)
The Chancellor erred in finding (E. 27, 29) that there was material evidence in the record supporting the findings of the Commission.
This was erroneous in that neither the testimony quoted by the Court (E. 27-28) nor any other evidence in the record (B.E. 25-124) possesses such probative value as would entitle it to be accepted by reasonably prudent men as a rational basis for concluding that the public convenience and necessity would in any way be promoted by the creation of the service proposed.
The appellants were prejudiced thereby because the privileges accorded them under their own certificates of convenience and necessity and the privilege granted them by law to intervene in the Commission’s proceedings were thereby rendered meaningless, and they were deprived of these privileges without benefit of due process of law or the law of the land.
Error No. 2 (Law)
The Chancellor erred in failing to consider the entire record before the Commission in determining whether there was material evidence to support the findings and decision of the Commission.
[64]*64This was erroneous in that the result was actual ■application of an extreme version of the ‘scintilla’ rule instead of the standards of judicial review on writ of certiorari as established by constitutional, statutory and decisional law applicable to review of the Commission’s findings and decisions.
The error was prejudicial in that the evidence the Chancellor disregarded established overwhelmingly that the public convenience and necessity would not be promoted by creation of the service proposed. The Chancellor’s limited review therefore had the effect of denying the appellants their constitutional and statutory right of judicial review by the writ of certiorari, of their statutory right to findings and a decision by the Commission based upon all of the evidence before the Commission, and of their statutory privileges without benefit of due process of law or the law of the land.
Error No. 3 (Law)
The Chancellor erred in failing to consider the entire record before the Commission in determining whether the Commission had failed to apply the statutory standards in deciding this case or had otherwise acted arbitrarily, capriciously, illegally or in excess of the jurisdiction conferred on the Commission by statute.
This was erroneous in that applicable constitutional, statutory and decisional authority require this minimum of judicial review by certiorari in all cases.
The error was prejudicial because upon considering the record as a whole the Chancellor would necessarily [65]*65have found that the Commission did not apply the statutory standards, did not give consideration to the evidence the appellants had a statutory right to present and to have considered, and rendered findings and a decision for which no rational basis existed in the record.
Error No. 4 (Law)
The Chancellor erred in failing to review the record de novo.
This was erroneous in that the Commission is an inferior jurisdiction exercising judicial functions whose errors of law and fact may not be corrected by any plain, speedy or adequate procedure other than a review de novo by the writ of certiorari, and such review is guaranteed by the Constitution and statutes of Tennessee in all such cases, and because any lesser review would amount to a delegation by the courts of judicial powers to a legislative or administrative body in violation of the constitutional principle of separation of powers.
The error was prejudicial in that if the Chancellor had reviewed the evidence de novo, he would necessarily have found that the great preponderance, if not all, of the evidence before the Commission established that there was no public need or demand for the service proposed, that the service already being provided was more than adequate, that the proposed service would adversely affect the traveling public using the highways, that the proposed service would adversely affect other transportation service being rendered, and that the public convenience and necessity would not be promoted by the proposed service.”

[66]*66Appellants’ assignment of error 4 urges that the Chancellor erred in failing to review this record de novo. This is obviously the main thrust of the appellants ’ position and brief in support thereof. Indeed, unless they can maintain this proposition, the appellants must fail. Appellants’ dissatisfaction with the proof of the appel-lee, City Delivery Service, is simply not sufficient to entitle them to that which they here seek.

In order for this Court to sustain this assignment of error it would be necessary to overrule its previous decisions in City of Whitwell v. Fowler (1961) 208 Tenn. 80, 343 S.W.2d 897, and Hoover Motor Express Co. v. Railroad

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Bluebook (online)
407 S.W.2d 156, 219 Tenn. 60, 23 McCanless 60, 1966 Tenn. LEXIS 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-fowler-tenn-1966.