Lewis Bros. Stages, Inc. v. Public Service Commission

TUCKETT, Justice. The plaintiffs seek a review of an order of the Public Service Commission. The above entitled cases were consolidated for hearing before the court and the court’s decision will apply to both cases and will be determinative as to both. The Wycoff Company,. Incorporated, made application to the Public Service Commission of Utah for a certificate of convenience and necessity to operate as a common carrier by motor vehicle for the transportation of general commodities in' express service between all points and places in the state of Utah over established highways. Prior to the hearing Wycoff amended its application to restrict the proposed service to shipments weighing 10Q6 pounds or less. Since February 1959, Wycoff has been operating a general commodities express service between all points in the state of Utah except between Salt Lake City and Ogden. Wycoff’s authority was restricted to the transportation of shipments weighing not more than 100 pounds and not more than 500 pounds to be carried on any one schedule. The plaintiffs in each of the cases above referred to appeared as protestants to the application of Wycoff. The hearings were conducted by an examiner appointed by the Commission, which hearings were extensive and during which numerous witnesses were called by the respective parties. At the conclusion of the hearings the examiner made findings of fact and conclusions which the Commission adopted as its own findings and conclusions and issued its order granting Wycoff’s application with á limitation of shipments of not to exceed 250 pounds on a weight basis. A record of the transcript of the testimony of the witnesses has not been prepared. Such record was not before the Commission nor is it before this court.1 It is the contention of the plaintiffs in the above mentioned cases that the evidence does not show a need for the service proposed under the Wycoff application and that the order of the Commission is not supported by the evidence and therefore arbitrary. Counsel for the various parties involved in these proceedings do not agree as to what the record of the testimony of the various witnesses shows. We are asked to review the order of the Commission not upon the facts revealed by a record of the evidence but rather upon the claims of counsel as to what the facts are. As there is no agreement among the par [289] ties as to what the record would reveal, the court is unable to perform its function of reviewing the proceedings of the Commission as contemplated by the statute,2 and we are of the opinion that the order of the Commission should be set aside until such time as the record is completed and reviewed by the Commission and returned to this court. It is so ordered. HENRIOD and ELLETT, JJ., concur. Footnotes [2] See. 54-7-16, U.C.A.1953. See also Lake Shore Motor Coach Lines v. Bennett, 8 Utah 2d 293, 333 P.2d 1061.