Associated Pacific Movers, Housemovers, Inc. v. Rowley

551 P.2d 618, 97 Idaho 663, 1976 Ida. LEXIS 331
CourtIdaho Supreme Court
DecidedJune 25, 1976
DocketNo. 11826
StatusPublished
Cited by2 cases

This text of 551 P.2d 618 (Associated Pacific Movers, Housemovers, Inc. v. Rowley) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Associated Pacific Movers, Housemovers, Inc. v. Rowley, 551 P.2d 618, 97 Idaho 663, 1976 Ida. LEXIS 331 (Idaho 1976).

Opinion

McFADDEN, Chief Justice.

Tom Rowley, dba Rowley Trucking, applied to the Idaho Public Utilities Com[664]*664mission for a motor contract carrier permit to move houses over irregular routes within Idaho. After a hearing, the Commission denied his application and Rowley did not file a petition for a rehearing. Later, he submitted a second application to the Commission, again seeking the same statewide authority. The Commission conducted a hearing on the second application, after which it awarded Rowley a permit to move houses over irregular routes in Idaho, but only south of the Salmon River. The protestants to the application petitioned for a rehearing, which the Commission denied, and then appealed to this court. We affirm.

At the hearing on the second application, ten witnesses, including Rowley himself, testified in favor of the permit being granted. The nine witnesses other than Rowley all testified as to their difficulties in seeking and obtaining the services of authorized housemovers. Two of those witnesses were officers of Olympic Homes, Inc., who testified not only about the company’s past difficulties in obtaining housemoving services for its prefabricated homes constructed at its Pocatello plant, but also about the continuing need for such services. The protestants to the application, housemovers holding existing authority from the IPUC, testified that they were ready, willing, and able to provide all the housemoving services required in Idaho. The Commission relied upon and cited the evidence presented at the hearing to find that Rowley was fit, willing, and able to perform the proposed service, as required by I.C. § 61-802,1 that a lack of aggressive competition existed in the housemoving industry in Idaho south of the Salmon River, and that the authority awarded to Rowley in the permit was required by present or future public convenience and necessity, as required by I.C. § 61-802.

On appeal, the appellants challenge the award of the housemoving permit on the ground that Rowley’s second application and the hearing thereon amounted to a collateral attack on the first order of denial and thereby violated I.C. § 61-625, which provides: “All orders and decisions of the commission which have become final and conclusive shall not be attacked collaterally.” However, the legislature also enacted I.C. § 61-624 2 to provide the IPUC the authority to rescind, alter, or amend a prior order or decision upon compliance with that statute’s procedures. Any modification of an order under I.C. § 61-624 arguably could be a collateral attack on that order, but such an interpretation would bring those two consecutive statutory sec[665]*665tions into direct conflict, a result we cannot support. The Arizona Supreme Court, in Davis v. Corporation Commission, 96 Ariz. 215, 393 P.2d 909 (1964), rejected the argument that the modification of the commission’s previous order was a collateral attack under that state’s statute comparable to I.C. § 61-624. The court stated:

“There is no merit in appellants’ argument that this case involves a collateral attack on the prior order of the Commission, which is prohibited by the final sentence of A.R.S. § 40-252. This court has held that ‘collateral attack’ as used in that section means an attack such as an application for injunctive relief against an order of the Commission. [Citations omitted]. An application to the, Commission to rescind, alter or amend an order, pursuant to A.R.S. § 40-252 does not constitute a collateral attack upon an order of the Commission.”

Id. at 911-12.

The statutory authorization for subsequent rescission or modification of an order or decision, contained in I.C. § 61— 624, implies the authority of the IPUC to grant a hearing on a new application for a permit denied in a previous order. Brook Ledge, Inc. v. Public Utilities Comm’n, 145 Conn. 617, 145 A.2d 590 (1958).

In relation to this same argument, the appellants further contend that the Commission allowed Rowley to collaterally attack its initial denial by allowing him to introduce at the hearing on the second application evidence that was available to him at the time of the earlier denial. The appellants have not demonstrated what evidence offered at the second hearing was available to Rowley at the time of the initial proceeding. Moreover, the testimony of some of the nine witnesses indicates that their testimony was unavailable to Rowley earlier. Thus, the appellants failed to establish the premise for this portion of their argument about a collateral attack.

For the reasons discussed above, it is the conclusion of this court that Rowley’s second application and the hearing thereon did not constitute a collateral attack on the Commission’s earlier order that denied him a motor contract carrier permit.

The appellants further contend that, if the second application and hearing were valid, the evidence presented at the hearing failed to support the Commission’s finding that the present or future public convenience and necessity required Rowley’s housemoving services. The findings of the IPUC will be sustained by this court when competent, substantial, although conflicting evidence supports them. Hartwig v. Pugh, 97 Idaho 236, 542 P.2d 70 (1975); Application of Bermensolo, 82 Idaho 254, 352 P.2d 240 (1960). While recognizing this rule, the appellants nonetheless contend that the evidence submitted on behalf of Rowley was not competent because it concerned past, rather than present or future, difficulties in obtaining the services of an authorized housemover. The court disagrees.

This court has recognized that what constitutes public convenience and necessity for the services of a motor carrier depends on the particular circumstances of each case. Application of Bermensolo, supra. Some types of motor carrier applications require the consideration of evidence regarding past incidents and recent events to determine whether the proposed service is required by present or future public convenience and necessity. The nature of the housemoving industry whereby customers generally do not seek such services on a regular or even intermittent basis, establishes the relevancy of such evidence. A repeated, recent failure of service is strong evidence that the present or future public convenience and necessity require additional competition within a geographical area. Furthermore, the two witnesses who were officers of Olympic Homes, Inc., testified not only about the corporation’s past difficulties in obtaining the services of an authorized housemover, but also about the company’s continuing need [666]*666for the services of a professional mover. The appellants frame their argument as a challenge to the competency of the witnesses’ testimony, but the substance of their argument is a challenge to the relevancy of that testimony. As stated above, the testimony is relevant because of its probative value.

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Bluebook (online)
551 P.2d 618, 97 Idaho 663, 1976 Ida. LEXIS 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/associated-pacific-movers-housemovers-inc-v-rowley-idaho-1976.