I dissent because the board exceeded its jurisdiction. After finding that there was a public need for additional taxicab service at the location where the petitioner desired to establish a taxicab stand, the board denied his petition substantially on the ground of public policy. That was clearly beyond its province. The only question before it was one of fact. And that question was, had the petitioner shown by his evidence that public convenience made it necessary to permit additional taxicab service at the location applied for? If it found that he had shown such need, it was the board's duty to reverse the decision of the administrator and order him to issue the desired certificates. It was no part of its duty to go further, as it did, and weigh questions of public policy, which it conceived might arise if it reversed the administrator.
In my opinion the board clearly found that "public convenience and necessity" had been proved. This is evident from the following language of the board's decision: "We find, and are bound to find, that in and about Exchange Place in the City of Providence between the hours of 12:00 midnight and 2:00 A.M. or thereabouts there are large *Page 253 numbers of persons desiring transportation by automobile in excess of that which is available. This could not be better illustrated than by the testimony of Tony Brown, an independent operator of taxicabs, who stated that you could not get a taxicab at 1:00 o'clock in the morning if fifty cabs were added to those now in operation. There is, therefore, clearly a demand at that location at those times for additional facilities for automobile hire."
Having made that definite finding on the only issue before it, the board then goes on to discuss other matters which persuaded it to sustain the decision of the administrator. While such matters might afford the legislature reasons for legislative action to meet a situation created by the emergency of war, they do not, in my opinion, afford an administrative agency, such as the board or the administrator, grounds for arrogating such authority to itself. In the instant proceeding the board is solely a fact-finding agency of very limited scope, namely, that of finding whether or not the petitioner has established that public convenience requires additional taxicab service. Its finding of such fact is prima facie conclusive upon us, if the weight of the evidence supports such finding, and it is also conclusive upon the board itself.
That the above-quoted finding of the board is supported by the weight of the evidence is put beyond all question by certain parts of the testimony of Charles Keenan, manager of the Yellow Cab Company, which is the holder of almost all the taxicab certificates of public convenience and necessity in the city of Providence and which opposed, before the board and before us, the granting of the instant petition. "32 CQ Now, Mr. Keenan, do you feel that there is a necessity for more taxicabs in the City of Providence at the present time? A. The orders issued by the O.D.T. would make it necessary. Under ordinary conditions before they came out, I would say `no'. 33 CQ I didn't ask you that, Mr. Keenan. At the present time do you feel that there is necessity for more taxicabs? A. Basing my answer on normal conditions? . . . 35 CQ Mr. Keenan, do you feel that at the *Page 254 present time there are enough taxicabs in the City of Providence to take care of the demands of the general public? A. Working under O.D.T. restrictions `no'. . . . 89 CQ Are you able to take care of all of the patrons in the City of Providence? A. Not since the O.D.T. restrictions were placed on us."
The first rule for the guidance of the administrator is to see that the public convenience is served. That is a duty which the statute plainly puts upon him. The same duty rests upon the board in reviewing his decision. The protection of present holders of certificates from the economic effects of additional competition is secondary. The object of the statute is neither to foster monopoly nor to freeze existing competition. Such considerations become relevant only incidentally in determining the primary question whether additional service by another or others will really promote the welfare of the traveling public.
If war regulations of the federal government have restricted the present holders of taxicab certificates to the operation of so limited a number of taxicabs that they are presently unable to furnish adequate public service, as is evidently the case, and, if such regulations permit other automobiles which are operated for public hire to be used in taxicab service, as is also the case, then there is no sound reason why the administrator should not issue certificates of public convenience and necessity for the operation of such automobiles as taxicabs. Indeed, in such circumstances, I think that it is his duty to do so, provided the petitioner is able to meet all the requirements for the rendering of such taxicab service.
While it may seem harsh and unjust to the present holders of such certificates that others should thus be permitted to furnish the very service which they are prepared to furnish but are prevented from furnishing by the war regulations of the federal government, there is actually no injustice, although there may be a real economic sacrifice. But, in that respect, their situation is no worse than that of many who, *Page 255 by reason of one war regulation or another, have suffered substantial economic loss. And of course such loss is not to be compared with the loss of life or health which hundreds of thousands have already suffered in this war. The present holders of certificates are, therefore, entitled to no special consideration or protection at the cost of inconvenience to the public merely because their business is, in part, an economic casualty of war. Moreover, neither the board nor the administrator is competent to extend such protection. The scope of their power is limited to the consideration solely of "public convenience and necessity."
It may not be amiss to observe here that, according to the evidence, much of the public inconvenience due to lack of adequate taxicab service in Exchange Place in the post-midnight hours is being borne by men of the armed services who come to Providence to enjoy a few all too fleeting hours of freedom from military regimen and, who, in many instances, are squeezing all the enjoyment there is to be obtained out of their last free time before they embark upon the great adventure. Who would think, much less talk of any economic loss in the face of that fact? To suffer those men, presently a substantial part of the traveling public in Providence, to be inconvenienced by not authorizing additional taxicab service would, on this record, most certainly be harsh and unjust to them. But aside from any question of injustice to them or to the present holders of certificates, the need for additional taxicab service to serve public convenience having been shown, the authorization of additional service should follow.
For the reasons above set forth, I am, therefore, of the opinion that the board erred in not granting the petition and reversing the decision of the administrator.