Morgan Drive Away, Inc. v. Railroad Commission of Texas

POPE, Justice

(dissenting).

I respectfully dissent. The majority has concluded that the commission’s order falls short of the statutory requirement that it contain full and complete findings of fact. Art. 911b, Sec. 5a(d). The order incorporates the examiner’s report and recommended order, and attached to that was a summation of copious proof offered by both the applicant and protestants.

The conclusion reached by the majority flows from its disregard of many portions of the six-page report of the examiner and its attention to only two conclusionary paragraphs of that document which paragraphs it reads with a hostile eye. I should think that all parts of the report should be examined. When we do that we learn that twenty public witnesses asked for better service than they now receive and only one public witness appeared against the applicant. There were findings *153of four-fold growth in the public’s use of mobile homes over a ten-year period, and that this increase was to the extent of almost 25,000 units during the year prior to the hearing. Texas plants which fabricate such units have increased from 43 in 1968 to 126 at the time of the hearing and other plants are being built. Paralleling this exceptional growth of the mobile home industry, there has been an increase in what the witnesses called “bootlegging” by unauthorized transporters of mobile homes. In 1966 there were 18 cases of illegal transportation whereas in 1970 there were 281 cases filed against illegal carriage of such units. Applicant’s public witnesses testified that the protestants have been unable to supply transportation when needed. The commission found that the application is supported by manufacturers located in every part of Texas who ship, receive and influence the movements of such units from and between points scattered throughout Texas.

“In consideration of the above,” that is, the recitals contained in the foregoing parts of the report, the examiner concluded that the two protestants are not providing fully adequate service for handling the intrastate traffic in such units, the proposed new service is required by the public convenience and necessity, and the new service will result in improvement in existing service. The examiner concluded that any loss of intrastate traffic to the protestants would be more than offset by the increase in the traffic which is resulting from the growth in the mobile home industry.

The majority cites in support of its decision, Miller v. Railroad Commission, 363 S.W.2d 244 (Tex.1963); Thompson v. Railroad Commission, 150 Tex. 307, 240 S.W.2d 759 (1951) and Thompson v. Hovey Petroleum Co., 149 Tex. 554, 236 S.W.2d 491 (1951), neither of which has an order comparable to the one here questioned. More recently this court wrote Alamo Express, Inc. v. Railroad Commission, 407 S.W.2d 479, 485 (Tex.1966), wherein we said concerning those three cases:

In Miller, the finding of fact was embodied in a single sentence, which was clearly inadequate. In Thompson, the order contained a recital of the evidence but no findings of fact from the evidence. In Hovey, railroads as well as motor carriers protested the grant of additional authority to an applicant. The order found that an inadequate number of tank cars were furnished by the railroads but wholly failed to find that an inadequate number of tank trucks were furnished by the protesting motor carriers. It was a case of no finding at all upon the material issues.

This court recently considered the application for writ of error in Morgan Drive Away, Inc. v. Railroad Commission of Texas, 483 S.W.2d 320 (Tex.Civ.App.1972, writ ref’d n. r. e.), wherein the same two protestants urged the same lack of full and complete findings in the commission’s order which granted a certificate to Warfield Walker to transport mobile homes in northeast Texas. The commission’s findings followed the same format as that employed in this case. The commission invoked its common knowledge of the “tremendous increase in the use and transportation of mobile homes in Texas within the last ten years” as well as the increase in recreational facilities and the mobility of college students who use mobile homes. The court of civil appeals concluded in that case, as did this court, “that a court upon reading them [the findings] can fairly and reasonably say that they either do or do not support the required ultimate statutory findings of inadequacy of the services and facilities of existing carriers and a genuine public need for the proposed service.” Miller v. Railroad Commission, supra.

I would conclude that proof of an exceptional growth of a new industry over a short time-span, and a projected continua*154tion of that growth would be valid findings which support the need for new competitive carrier services.

I would affirm the judgment of the trial court upholding the validity of the commission’s order.

DENTON, J., joins in this dissent.