I believe the commission has wholly failed to comply with the explicit direction of § 10 of the Wyoming Administrative Procedure Act1 requiring separate findings of fact and conclusions of law, and would therefore remand the proceedings with instructions to make such findings and conclusions. This procedure was followed in Pan American Petroleum Corporation v. Wyoming Oil and Gas Conservation Commission (Wyo. 1968),446 P.2d 550, 555, and I think that Mr. Justice Gray there said about everything that needs to be said. After pointing out that the requirement is to make findings of basic and not ultimate facts, so as to provide the reviewing court with a rational basis for determination whether the decision is supported by substantial evidence, he observes that ultimate facts can be reached only by a process of legal reasoning based on the legal significance of the primary evidentiary facts and concludes that an orderly review "requires that the primary basic facts must be settled before it can be determined that ultimate facts found by the agency conform to law."
I concede with the majority of the Court that the issue to be decided is whether the public good, its convenience and necessity, outweighs the expense of the railroad in continuing such agency, so as to require *Page 27 the continuance thereof. The commission makes two findings of ultimate fact:2 That Union Pacific has not shown that the Burns agency is now losing or will in the future lose money; and that the future development of the Burns area will be hindered by the elimination of the agent and agency station at Burns. This Court considers the second finding unnecessary since under the view it takes of the case there is an immediate public need for continuance of the agency station.
However, while the majority state that the action of the commission was in conformity to law "and the findings of fact were supported by substantial evidence", in order to sustain the commission's decision they actually make an independent finding that the commission has not made, namely, that the service given at the station at Burns and its four blind sidings could not reasonably be expected to run efficiently under the substitute service which the railroad proposes out of Pine Bluffs. Evidence substantiating this is said to be the fact that the Pine Bluffs agent will have more business than now, he will be out of his office more, telephone contact with him will be more difficult, and the railroad has failed to present a clear and comprehensive plan for substitute service. It is said that such testimony "might well have been interpreted by the commission as likely to have inimical effects on the public convenience and necessity of the Burns area."
I am concerned that despite the express mandate of the statute the commission has failed to find the basic or underlying facts necessary to support its decision and a majority of this Court independently review and pass upon the sufficiency of the evidence to reach a determination that the commission's action is justified, not by what it found as fact, but by what it might have found. To me, this amounts to a substitution of the court as trier of the facts, so long as it only affirms and does not set aside the agency decision. I do not think that it is the intent of the Administrative Procedure Act that the courts should speculate as to what the commission might have properly found; it is the duty of that commission to set forth specifically what it does find. Therefore, I cannot agree with the conclusion of the majority that notwithstanding the commission's departure from the standards outlined in Pan American its action was in conformity with law. I think that clearly it was not.
While I think the requirement that an administrative agency make clear-cut findings of basic fact should never be ignored, I should also add that I am disturbed by what appears to me to be an attitude of the commission that as long as a station is making some money it must be continued. This is indicated by the statement in the "Discussion" portion of the order where it is said that "the Commission adheres to the policy that agencies should be closed only when they are losing money or are no longer needed or used." The commission as well as this Court should give thoughtful consideration to the authorities cited by Union Pacific, that in the absence of public convenience and necessity the maintenance of an agency station involves a question of business policy with which regulatory bodies should not interfere,3 and that it is the function of such regulatory bodies to eliminate unnecessary expenses, not to perpetrate them.4 On the basis that *Page 28 expenses needlessly incurred represent economic waste, I think the commission should have carefully considered just what real inconveniences to the public would have resulted from the elimination of the agent at Burns.
The railroad may have been remiss in not presenting a better picture of its substitute plan5 for operations through Pine Bluffs, and the commission would certainly have been justified in exacting more specific commitments as to just how the public would be served, but I think that the commission's approach to the case has been colored by the above mentioned policy not to close a station unless it is losing money. Such an impression on my part might have been avoided had the commission, as the trier of the fact, made specific and basic findings of fact and on the basis of those facts reached certain definite conclusions of law so that a logical and reasoned decision could be reached.