Hallows, C. J.
The basic issue on this appeal is whether the PSC’s decision and order denying Robertson’s application to remove the interroute restrictions on engaging in a single-line service between Monroe and Madison-Milwaukee is supported by substantial evidence in light of the entire record as submitted.
The granting or denial of a certificate of authority by the PSC is done in the exercise of legislative discretion by the commission. Its power is granted by sec. 194.23 (1), Stats., which provides in substance that no person shall operate a motor vehicle as a common motor carrier except in accordance with the terms and conditions of a certificate issued by the commission. The commission has the power “as the public interest may require, upon a finding of public convenience and necessity, to issue or refuse any such certificate or amendment . . . .” However, before granting a certificate “the commission shall take into consideration existing transportation facilities in the territory proposed to be served . . . .” On review under ch. 227, when the sufficiency of the evidence is challenged, this court in its review must apply the “substantial evidence” test. Sec. 227.20 (1). And, the court must give due weight to the experience, technical competency, specialized knowledge and discretionary authority of the agency. Sec. 227.20 (2).
[658]*658It is argued the traditional scope of this test has been enlarged in recent cases. Consequently, it is necessary for us to briefly review the more important cases. We call attention to the case of Stacy v. Ashland County Dept. of Public Welfare (1968) (handed down concurrently with this opinion), ante, p. 595, 159 N. W. 2d 630, which also discusses this problem. The basic case is Gateway City Transfer Co. v. Public Service Comm. (1948), 253 Wis. 397, 34 N. W. 2d 238. That case pointed out that in reviewing administrative decisions, “substantial evidence” did not include the idea of this court weighing the evidence to determine if a burden of proof was met or whether a view was supported by the preponderance of the evidence. Such tests are not applicable to administrative findings and decisions. We equated substantial evidence with that quantity and quality of evidence which a reasonable man could accept as adequate to support a conclusion. And, in this process, sec. 227.20 (1) (d), Stats., providing that the decision of an agency may be reversed if unsupported by substantial evidence in view of the entire record as submitted does not permit this court to pass on credibility or to reverse an administrative decision because it is against the great weight and clear preponderance of the evidence, if there is substantial evidence to sustain it.
Substantial evidence is not equated with preponderance of the evidence. There may be cases where two conflicting views may each be sustained by substantial evidence. In such a case, it is for the agency to determine which view of the evidence it wishes to accept. Likewise, there are cases where only one view can be supported by substantial evidence and the determination depends upon the credibility of witnesses.
The view that this court is guided by different standards in reviewing an agency’s finding than it is in reviewing a finding of a trial court or a jury is followed in Motor Transport Co. v. Public Service Comm. (1953), [659]*659263 Wis. 31, 56 N. W. 2d 548. We do not think this view is changed by Copland v. Department of Taxation (1962), 16 Wis. 2d 543, 114 N. W. 2d 858, in which case this court held there was no substantial evidence to support the finding of the commission of the value of goodwill. This was not because of this court’s concept of what the value of goodwill was but rather because the method of evaluating or arriving at that value was unreasonable. What is substantial or what a reasonable man might consider to be adequate support of a conclusion lies within the domain of the reviewing court and this court may well differ on this point with an administrative agency. This is not a violation of the separateness of the branches of the government but the exercise of a check and balance. Likewise, in Silverberg v. Industrial Comm. (1964), 24 Wis. 2d 144, 128 N. W. 2d 674, this court held there was no substantial evidence to support a finding denying a license to an employment agency. This finding related to a statutory standard, whether the number of licensed employment agencies in a given area was sufficient to supply the needs of employees and employers.
Such a determination is not by nature legislative whereas a finding of what constitutes “public interest” for various purposes and circumstances and without guidelines has uniformly been held to be a legislative function. Gateway City Transfer Co. v. Public Service Comm., supra; In re City of Beloit (1968), 37 Wis. 2d 637, 155 N. W. 2d 633. Likewise, the terms “public convenience and necessity” in relation to transportation are comprehensive and broad terms. One of the qualifications of the statute requires the commission in making such a determination to take into consideration existing transportation facilities in the territory proposed to be served. In Gateway we held this language did not require or promote either a monopolistic or competitive view of transportation. We affirmed this view in Priebe [660]*660v. Public Service Comm. (1968), 38 Wis. 2d 635, 157 N. W. 2d 600.
The volume of business between two terminals maybe such that two common carriers are needed to serve the public convenience and necessity. Likewise, the volume may only justify one line. When two lines are allowed, the cry is made of favoring competition; when one line is allowed, the charge of monopoly is made. This case is no exception.
The evidence on behalf of Robertson consisted of the testimony of some 22 witnesses who were shippers and expressed dissatisfaction with the service of Gateway, especially its slowness, damage to shipments and delays in claim settlements. The service in respect to time of Robertson was no better because of the joint-line restriction.
In rebuttal, Gateway used the testimony of their Janes-ville terminal manager who offered exhibits covering four weeks of four different months showing concrete examples of actual shipping time between Milwaukee and Monroe and between Madison and Monroe. This evidence contradicted the oral testimony offered by Robertson in the sense it would support an inference in respect to Gateway’s service contrary to the inference which could be drawn from Robertson’s evidence. A reasonable person acting reasonably and considering the testimony of Robertson’s witnesses could conclude such testimony represented the exception and that Gateway was furnishing reasonably adequate service. If we were to weigh the evidence in terms of preponderance, we might agree the evidence in favor of Robertson is of the greater weight. However, the evidence in favor of Gateway is substantial. It is for the commission to evaluate the evidence in the first instance and to draw the reasonable inference that Gateway’s service was of such quality as to satisfy the public convenience and necessity and conclude that the public interest on this [661]*661record did not require any additional single-line service between Monroe-Madison and Milwaukee.
Basic in the commission’s thinking was the view that the volume of business between Milwaukee and Monroe would not support two single-line systems.
Free access — add to your briefcase to read the full text and ask questions with AI
Hallows, C. J.
The basic issue on this appeal is whether the PSC’s decision and order denying Robertson’s application to remove the interroute restrictions on engaging in a single-line service between Monroe and Madison-Milwaukee is supported by substantial evidence in light of the entire record as submitted.
The granting or denial of a certificate of authority by the PSC is done in the exercise of legislative discretion by the commission. Its power is granted by sec. 194.23 (1), Stats., which provides in substance that no person shall operate a motor vehicle as a common motor carrier except in accordance with the terms and conditions of a certificate issued by the commission. The commission has the power “as the public interest may require, upon a finding of public convenience and necessity, to issue or refuse any such certificate or amendment . . . .” However, before granting a certificate “the commission shall take into consideration existing transportation facilities in the territory proposed to be served . . . .” On review under ch. 227, when the sufficiency of the evidence is challenged, this court in its review must apply the “substantial evidence” test. Sec. 227.20 (1). And, the court must give due weight to the experience, technical competency, specialized knowledge and discretionary authority of the agency. Sec. 227.20 (2).
[658]*658It is argued the traditional scope of this test has been enlarged in recent cases. Consequently, it is necessary for us to briefly review the more important cases. We call attention to the case of Stacy v. Ashland County Dept. of Public Welfare (1968) (handed down concurrently with this opinion), ante, p. 595, 159 N. W. 2d 630, which also discusses this problem. The basic case is Gateway City Transfer Co. v. Public Service Comm. (1948), 253 Wis. 397, 34 N. W. 2d 238. That case pointed out that in reviewing administrative decisions, “substantial evidence” did not include the idea of this court weighing the evidence to determine if a burden of proof was met or whether a view was supported by the preponderance of the evidence. Such tests are not applicable to administrative findings and decisions. We equated substantial evidence with that quantity and quality of evidence which a reasonable man could accept as adequate to support a conclusion. And, in this process, sec. 227.20 (1) (d), Stats., providing that the decision of an agency may be reversed if unsupported by substantial evidence in view of the entire record as submitted does not permit this court to pass on credibility or to reverse an administrative decision because it is against the great weight and clear preponderance of the evidence, if there is substantial evidence to sustain it.
Substantial evidence is not equated with preponderance of the evidence. There may be cases where two conflicting views may each be sustained by substantial evidence. In such a case, it is for the agency to determine which view of the evidence it wishes to accept. Likewise, there are cases where only one view can be supported by substantial evidence and the determination depends upon the credibility of witnesses.
The view that this court is guided by different standards in reviewing an agency’s finding than it is in reviewing a finding of a trial court or a jury is followed in Motor Transport Co. v. Public Service Comm. (1953), [659]*659263 Wis. 31, 56 N. W. 2d 548. We do not think this view is changed by Copland v. Department of Taxation (1962), 16 Wis. 2d 543, 114 N. W. 2d 858, in which case this court held there was no substantial evidence to support the finding of the commission of the value of goodwill. This was not because of this court’s concept of what the value of goodwill was but rather because the method of evaluating or arriving at that value was unreasonable. What is substantial or what a reasonable man might consider to be adequate support of a conclusion lies within the domain of the reviewing court and this court may well differ on this point with an administrative agency. This is not a violation of the separateness of the branches of the government but the exercise of a check and balance. Likewise, in Silverberg v. Industrial Comm. (1964), 24 Wis. 2d 144, 128 N. W. 2d 674, this court held there was no substantial evidence to support a finding denying a license to an employment agency. This finding related to a statutory standard, whether the number of licensed employment agencies in a given area was sufficient to supply the needs of employees and employers.
Such a determination is not by nature legislative whereas a finding of what constitutes “public interest” for various purposes and circumstances and without guidelines has uniformly been held to be a legislative function. Gateway City Transfer Co. v. Public Service Comm., supra; In re City of Beloit (1968), 37 Wis. 2d 637, 155 N. W. 2d 633. Likewise, the terms “public convenience and necessity” in relation to transportation are comprehensive and broad terms. One of the qualifications of the statute requires the commission in making such a determination to take into consideration existing transportation facilities in the territory proposed to be served. In Gateway we held this language did not require or promote either a monopolistic or competitive view of transportation. We affirmed this view in Priebe [660]*660v. Public Service Comm. (1968), 38 Wis. 2d 635, 157 N. W. 2d 600.
The volume of business between two terminals maybe such that two common carriers are needed to serve the public convenience and necessity. Likewise, the volume may only justify one line. When two lines are allowed, the cry is made of favoring competition; when one line is allowed, the charge of monopoly is made. This case is no exception.
The evidence on behalf of Robertson consisted of the testimony of some 22 witnesses who were shippers and expressed dissatisfaction with the service of Gateway, especially its slowness, damage to shipments and delays in claim settlements. The service in respect to time of Robertson was no better because of the joint-line restriction.
In rebuttal, Gateway used the testimony of their Janes-ville terminal manager who offered exhibits covering four weeks of four different months showing concrete examples of actual shipping time between Milwaukee and Monroe and between Madison and Monroe. This evidence contradicted the oral testimony offered by Robertson in the sense it would support an inference in respect to Gateway’s service contrary to the inference which could be drawn from Robertson’s evidence. A reasonable person acting reasonably and considering the testimony of Robertson’s witnesses could conclude such testimony represented the exception and that Gateway was furnishing reasonably adequate service. If we were to weigh the evidence in terms of preponderance, we might agree the evidence in favor of Robertson is of the greater weight. However, the evidence in favor of Gateway is substantial. It is for the commission to evaluate the evidence in the first instance and to draw the reasonable inference that Gateway’s service was of such quality as to satisfy the public convenience and necessity and conclude that the public interest on this [661]*661record did not require any additional single-line service between Monroe-Madison and Milwaukee.
Basic in the commission’s thinking was the view that the volume of business between Milwaukee and Monroe would not support two single-line systems. However, it is evident that Robertson could improve the quality of its service to the public with a single-line operation. This view would seem to result in a great economic waste by failing to allow a common carrier to improve the quality of its service and better serve the convenience of the public, but this policy determination was entrusted to the PSC. A majority of this court concludes, as did the trial court, that there is substantial evidence in view of the entire record to sustain the findings; a minority would not.
Robertson claims the findings are arbitrary and capricious, mostly on the proposition the commission acts inconsistently in various cases. Consistency, of course, is a virtue both in administrative and in judicial determinations but inconsistencies in determinations arising by comparison are not proof of arbitrariness or capriciousness. Dairy Employees Independent Union v. Wisconsin Employment Relations Board (1952), 262 Wis. 280, 55 N. W. 2d 3; Nick v. State Highway Comm. (1963), 21 Wis. 2d 489, 124 N. W. 2d 574; see 2 Davis, Administrative Law Treatise, p. 528, sec. 17.07. We have said that an agency does not act in an arbitrary or capricious manner if it acts on a rational basis. Chicago, M., St. P. & P. R. R. v. Public Service Comm. (1954), 267 Wis. 402, 423, 66 N. W. 2d 351. Arbitrary action is the result of an unconsidered, wilful or irrational choice, and not the result of the “sifting and winnowing” process. Olson v. Rothwell (1965), 28 Wis. 2d 233, 239, 137 N. W. 2d 86; Iron River Grade School Dist. v. Bayfield County School Comm. (1966), 31 Wis. 2d 7, 13, 142 N. W. 2d 227.
By the Court. — Judgment affirmed.