affected by the extension of the W-4 line. The mandate of the Court in effect had directed that W., M. & A. be accorded a fair hearing after due notice. An examination of the record of the hearing before the Commission upon remand causes the Court to conclude that the mandate of the Court has been complied with. W., M. & A. was fully advised of the issue involved in the proposed extension of the W-4 line and ample opportunity was afforded it to participate in the hearings upon that issue. The record discloses that W., M. & A. took advantage of that opportunity.
Petitioner contends that order No. 3715 is illegal in that it establishes service competitive to that of petitioner despite the absence of substantial evidence of record showing such service to be necessary for the convenience of the public or that the service of petitioner is inadequate. Petitioner specifically alleges in its brief that the Commission made no finding of fact or conclusion that the extension of the W-4 line was 'necessary for the convenience of the public' in compliance with the statutory pre-requisite to the establishment of competitive service contained in Title 44-201 District of Columbia Code of 1940. The findings of fact of the Commission, Nos. 1, 4, 8 and 11, supra, in the Court's opinion, constitute substantial compliance with the requirement of the Statute. The Court is unable to find that there is such an absence of substantial evidence in support of the Commission's findings as to overcome the conclusiveness thereof. An examination and analysis of the testimony of the numerous witnesses as to the need for the service afforded by the extension in question satisfies the Court that the Commission's findings are supported by substantial evidence.
The petitioner has also urged that order No. 3715 is unreasonable, arbitrary, and capricious for the reasons that it is based in part upon testimony taken at the original hearing and that it is based upon evidence which was not admissible. The Court finds itself unable to agree with this $ t contention. Where there is substantial evidence in the record to sustain an administrative agency's determination, the admission of irrelevant and incompetent matter does not constitute reversible error. Sisto v. Civil Aeronautics Board, 1949, 86 U.S.App.D.C. 31, 179 F.2d 47. An examination of the proceedings in the P.U.C. Formal Case No. 383, considering the record in its entirety, causes the Court to conclude that the evidence before the Commission upon which its findings of fact are based is 'substantial'.
The petitioner has further urged that order No. 3715 is unlawful and illegal because the hearing on remand on which it was in part based, was beyond the scope of the order of the Court and beyond the power of the Court to order. The Court is unable to agree with this contention. The record at the time of the Court's order of remand did not contain sufficient evidence to enable the Court to make a determination of the claims of the petitioner. The order remanding the case to the Commission was based upon, supported, and governed by the provisions and requirements of the D.C. Code, Title 43, Section 705 (1940 Ed.). That statute required the Commission 'to receive additional evidence upon any subject related to the issues on said appeal'. The evidence received by the Commission in its second hearing was received in accordance with the authorization and requirement of the statute.
Upon examination of the record in its entirety the Court finds substantial, competent evidence to sustain the decision reached by the Commission and expressed in its order extending the W-4 line of CTC from 36th Street and Alabama Avenue, S.E., to Pennsylvania and Alabama Avenues, S.E. The Court recognizes the function of the Commission as the trier of the facts, and when supported by substantial evidence the Commission's choice between two conflicting views will not be disturbed. N.L.R.B. v. Arcade Sunshine Co., 73 App.D.C. 128, 118 F.2d 49, certiorari denied 1941, 313 U.S. 567, 61 S. Ct. 942, 85 L. Ed. 1526; Neff v. Federal Trade Commission, 4 Cir., 1941, 117 F.2d 495; Fioret Sales Co. v. Federal Trade Commission, 2 Cir., 1938, 100 F.2d 358. The fact that conflicts in evidence or inferences to be drawn were resolved unfavorably to the W., M. & A. is not enough to justify setting aside the findings of the Commission on the ground that such action was unreasonable, arbitrary or capricious. Determinations by administrative agencies are not to be set aside by Courts if there is evidence to support them. This rule is applicable even though the Court might justifiably have reached a different conclusion had the matter been before it de novo. Swayne & Hoyt Ltd. v. United States, 1937, 300 U.S. 297, 304, 57 S. Ct. 478, 81 L. Ed. 659; Yankee Network v. Federal Communications Commission, 1939, 71 App.D.C. 11, 107 F.2d 212.
In the Court's opinion P.U.C. order No. 3715 is a valid order.
For the reasons stated, order No. 3715 of the Public Utilities Commission for the District of Columbia is affirmed.
Counsel will prepare proper order.
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