court conducting de novo review will not disturb findings unless against preponderance of the evidence
How later courts described this case
- court conducting de novo review will not disturb findings unless against preponderance of the evidence
Written by the judges who cited it.
The opinion
Otis H. Turner, Justice, dissenting. The majority substitutes its judgment in this case for that of the Arkansas Transportation Safety Agency, Transportation Regulatory Board, in basing its decision on the appellee’s unauthorized moving of homes at a time when Stone Mobile Home Service had no valid certificate, a violation of Ark. Code Ann. § 23-13-218 (1987).
These violations were considered by the Board, along with all the other evidence for and against the application. After weighing the evidence, as required, in its judgment and under the provisions of Ark. Code Ann. § 23-13-219 (1987), the Board granted the application for a certificate. On appeal, the action of the Board was affirmed by the circuit court.
The majority alludes to the fact that this court has never addressed the effect of prior unauthorized actions that are prohibited by statute, such as those of the appellee, when making a finding of fitness. Therefore, substantial reliance is based by the majority upon the federal code and cases arising from action of the Interstate Commerce Commission. That authority is neither applicable here nor persuasive. The Interstate Commerce Commission has stated that past failures to comply with regulatory requirements are pertinent in their direct relation to a company’s willingness and ability to conduct a proposed operation in a manner consistent with applicable laws and regulations. Moreover, if the past acts or omissions are shown to have been willingly or knowingly engaged in with the intent of evading the purpose or intent of the regulations, a finding of unfitness must be made. See Terminal Taxi Co., Common Carrier Application, 112 M.C.C. 796 (1971); see also Haywood Trucking Co., Contract Carrier Application, 81 M.C.C. 437 (1959). Arkansas has imposed no such requirement on the Board in its decision-making process.
We have recently restated in Jones Rigging & Heavy Hauling, Inc. v. Howard Trucking, Inc., 298 Ark. 33 , 764 S.W.2d 450 (1989), certain principles which we will follow in appeals from the Board. While we review these cases de novo, we will not disturb the findings of the Board unless they are against the preponderance of the evidence. Batesville Truck Lines v. Ark. Freightways, Inc., 286 Ark. 116 , 689 S.W.2d 553 (1985). We do not retry these cases or substitute our judgment for that of the Board. Fisher v. Branscum, 243 Ark. 516 , 420 S.W.2d 882 (1967). We will accord due deference to the Board because of its expertise in passing on the fact questions involved and because of its advantage in seeing and hearing the testimony of the witnesses before it. The burden is on the appellants to prove the decision is wrong. When the evidence is evenly balanced, the Board’s view must prevail. Wheeling Pipe Line, Inc. v. Arkansas Commerce Commission, 249 Ark. 685 , 460 S.W.2d 784 (1970).
As we have so often said, our role is not to substitute our judgment for the judgment of the Board, but to review its decision. In my view, the decision of the Board is not against the preponderance of the evidence, and I would affirm.
Hickman, J., joins in this dissent.