O'Neil v. Public Utilities Commission

410 A.2d 244, 119 N.H. 930, 1979 N.H. LEXIS 422
CourtSupreme Court of New Hampshire
DecidedDecember 28, 1979
DocketNo. 79-137
StatusPublished
Cited by4 cases

This text of 410 A.2d 244 (O'Neil v. Public Utilities Commission) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Neil v. Public Utilities Commission, 410 A.2d 244, 119 N.H. 930, 1979 N.H. LEXIS 422 (N.H. 1979).

Opinion

Grimes, C.J.

In this appeal pursuant to RSA 541:6, petitioners attack certain orders of the State public utilities commission (hereinafter the commission) authorizing a competitor to operate as a common and contract carrier of disabled motor vehicles. The issues before the court relate to the adequacy of notice provided interested parties prior to a hearing on the matter, and the sufficiency of the evidence to support the commission’s determination that the public convenience and necessity would be served by the challenged permits. Finding no error in the proceedings below, we uphold the commission’s orders.

The facts of this case appear undisputed. On January 19, 1979, an application was filed with the commission by one Armand R. Mastropietro, d/b/a Armand’s Auto Body, whereby the applicant sought authority to operate as a common and contract carrier of wrecked, disabled, repossessed, and stolen motor vehicles between all points within a twenty-five mile radius of the town of Newfields. The matter was set for hearing on February 23, 1979, and by order of notice issued January 23, 1979, the applicant was directed to publish said notice “once in a newspaper having general circulation in that portion of the state in which operations are proposed to be conducted.” Pursuant to the order, the applicant caused the order of notice to be published in the Rockingham County Gazette — Exeter Edition, on February 7,1979. This is a weekly free newspaper which, according to petitioners, has a circulation of some 17,000 in seventeen towns around Newfields, including Exeter but not including Portsmouth, Dover, or [932]*932Hampton. At or about this time, the commission undertook to mail copies of the order of notice to the New Hampshire Towing Association and seventeen towing companies located in the Portsmouth, Hampton, and Exeter area.

At the February 23, 1979 hearing, the applicant appeared pro se with the director of the American Automobile Association (AAA) and a police representative as witnesses. The applicant testified that there were no other holders of commission authority in Stratham, Greenland, or Newfields, and produced letters from customers and the police chiefs from those three towns in support of his application. The AAA representative testified concerning a proposed contract for emergency road service with the applicant in Newfields and the surrounding area. The police representative from Newfields testified that the applicant was the only wrecker called by his department.

Three towing operators appeared in. opposition to the application. Two of the opponents, both from Exeter, testified. The first operator, who provided services in three counties, stated that there were numerous operators within the twenty-five-mile radius area of operations requested by the applicant. The other operator stated that he does an active business in Stratham where the applicant is his main competitor. He acknowledged, however, not having many calls from Newfields lately.

Following the hearing, in an opinion dated April 19, 1979, the commission found that the applicant was fit, willing, and able to perform the service proposed; that he would conform to its rules and regulations; and that the public convenience and necessity would be served thereby. Accordingly, the commission granted the applicant authority to operate as a common carrier of property for hire by motor vehicle “of wrecked, disabled, repossessed and stolen motor vehicles from and within the Towns of Newfields, Greenland, and Stratham to a radius of 25-miles from the Town of Newfields;” and as a contract carrier of “wrecked and disabled motor vehicles between all points and places within a 10-mile radius of the Town of Newfields . . .,” pursuant to the AAA agreement. (Emphasis in original.)

Subsequent to the commission’s order, on May 9, 1979, the petitioners, fourteen authorized common and/or contract carriers having places of business within the twenty-five mile radius of the Town of Newfields, pursuant to RSA 541:3 filed a motion for a rehearing with the commission. By its order dated May 17,1979, the commission denied the petition for rehearing. Thereupon, petitioners sought appeal to this court.

Petitioners first challenge the validity of the commission’s orders on the ground that there was insufficient notice given interested parties [933]*933of the proposed February 23, 1979 hearing. They acknowledge that the applicant did cause the order of notice to be published in the Rockingham County Gazette — Exeter Edition. They contend, however, that such publication was inadequate inasmuch as eleven of the petitioners, although maintaining places of business within the applicant’s proposed area of operation, were not within the circulation area of the newspaper and thus received no actual notice therefrom. Petitioners contend either that the publication chosen by the applicant was inadequate for purposes of the January 23, 1979 order of notice directing publication to “all persons desiring to be heard ... in that portion of the state in which operations are proposed to be conducted . . . ;” or, alternatively, if the publication utilized satisfied the commission’s order, that the actual notice rendered was unreasonably deficient as a matter of due process.

We assume, arguendo, that the petitioners have sufficiently compelling interests at stake in the challenged proceedings to trigger the procedural protections of the due process clause of the fourteenth amendment. See North Alabama Express, Inc. v. United States, 585 F.2d 783 (5th Cir. 1978). But see Carter v. City of Nashua, 116 N.H. 466, 362 A.2d 191 (1976). We conclude, nevertheless, that the notice provided pursuant to the commission’s order of notice was adequate.

Initially, we note that due process does not necessarily mandate actual notice. “All that is required is that . . . the notice involved [be] reasonably calculated to apprise the interested party of the pendency of the action . . ..” North American Pharmacal, Inc. v. Dep’t of H.E.W., 491 F.2d 546, 551 (8th Cir. 1973). In the North American Pharmacal case, the court sustained the termination by administrative proceedings of certain proprietary interests of drug manufacturers where the only notice provided was an announcement of the hearing in the Federal Register. See also United States v. Allegheny-Ludlum Steel, 406 U.S. 742 (1972); North Alabama Express, Inc. v. United States, 585 F.2d 783 (5th Cir. 1978) (publication of notice of I.C.C. hearings in the Federal Register satisfies due process). In the context of regulatory proceedings such as these, notice by publication is a reasonable method of notifying interested parties and that is all that due process requires.

In the present case, however, petitioners argue that because the newspaper selected is not circulated throughout the entire twenty-five-mile radius area covered by the application, publication was therefore inadequate. But as the commission points out, there is no evidence of the circulation or nature of the Rockingham County [934]*934Gazette in the record.

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Bluebook (online)
410 A.2d 244, 119 N.H. 930, 1979 N.H. LEXIS 422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneil-v-public-utilities-commission-nh-1979.