Opinion
No. 39502.
April 4, 1955.
1. Administrative law — carriers — certificate of public convenience and necessity — rule — as to granting — refusing to grant.
A certificate of public convenience and necessity should not be granted a motor carrier where there is existing adequate service over the route applied for, and if existing service is inadequate, not until existing carrier or carriers operating over the route have been given opportunity to furnish such additional service as may be reasonably required.
2. Administrative law — carriers — certificate — improperly granted by Commission.
Public Service Commission acted improperly in granting duplicate certificate to operate a common carrier of property by motor vehicle in intrastate commerce in territory already served by certified carriers without giving existing carriers notice and a reasonable time within which to furnish such additional or improved services as might be reasonably required.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
Alexander, Feduccia Alexander, Cleveland, for appellant.
I. On the whole case there is no evidence in this record to disturb the prima facie correctness of the findings of the Public Service Commission. There is not the slightest reason for the Supreme Court to substitute its judgment for that of the Commission and disturb its findings, because the great preponderance of the evidence supports the findings of the Commission. The Commission's ruling is certainly not arbitrary or manifestly against the evidence, but it is in line with the preponderance of the evidence submitted. The holding of the Commission was not beyond the power of the Commission nor does it violate any of the constitutional rights of the three protestants. This case should be reversed and judgment rendered, ordering the Mississippi Public Service Commission to issue the certificate of public convenience and necessity and to permit the appellant to qualify to operate the route intrastate from Jackson to Indianola, Mississippi, as a "closed door" operation restricted to the certain commodities mentioned, with daily service, upon the appellant complying with all of the requirements as to the posting of appropriate bond, and any other reasonable requirement. Campbell Sixty-Six Express, Inc. v. Delta Motor Line, Inc., 218 Miss. 198, 67 So.2d 252; West Bros., Inc. v. H L Delivery Service, Inc., 220 Miss. 323, 70 So.2d 870; West Bros., Inc. v. Illinois Cent. R.R. Co., 222 Miss. 335, 75 So.2d 723; Sec. 7642, Code 1942; Sec. 7640, Laws 1942.
Waits Waits, Leland; Butler, Snow, O'Mara, Stevens Cannada; Byrd, Wise Smith, Jackson, for appellees.
I. The evidence of record in this case conclusively establishes the following.
A. The existing service is adequate to every point involved in this proceeding.
B. The present operations of appellees are being conducted under highly competitive conditions.
C. The present operations of both motor carrier protestants in the Delta area are being conducted at a loss.
D. Steady improvements have been made in the service in the Delta area for several years, but continued improvements are dependent entirely upon the volume of traffic available. Additional volume enables the rendition of additional and improved service; decreased volume requires the curtailment of service.
E. Any diversion of traffic from the lines of appellees will necessarily impair the quality and quantity of service rendered by appellees in the area.
F. Appellant offers to serve only a few principal towns, whereas appellees serve a large number of additional points in the area. Loss of traffic to appellant would force appellees to decrease service now being rendered to points not served by appellant.
G. Appellant's real objective is the acquisition of rights to serve Jackson in interstate commerce, since only a small percentage of the total traffic consists of intrastate traffic. Intrastate authority is sought primarily to bolster appellant's efforts to obtain interstate authority.
H. Appellant promises to render the proposed service only if profitable to appellant, yet appellant failed to prove that the proposed operation can be conducted profitably. Without interstate authority, no carrier can successfully conduct regular operations in the area.
I. If the existing service is, in fact, inadequate, appellees should be given reasonable opportunity to furnish such additional or improved service as may be required. Both Delta Motor Line and Cook Truck Lines unconditionally offered to Mississippi Public Service Commission to render such additional service as the Commission may require. Both carriers are ready, willing, and able to comply with any reasonable request for additional service. Both Delta and Cook are comparatively new carriers in the area, and at the time of the hearing Cook had only temporary authority to operate under a lease arrangement. The rights now held by Cook were transferred to Cook subsequent to the hearing, and Cook was given no opportunity to render service under its present, permanent rights.
J. The action of the Mississippi Public Service Commission was arbitrary, capricious, and not supported by substantial evidence. In authorizing the issuance of a certificate duplicating the rights of appellees, the Commission acted directly contrary to the provisions of the Motor Carrier Act and the express mandates of this Court, as set forth in several prior decisions.
Collation of authorities: Baltimore Ohio R.R. Co. v. United States, 264 U.S. 258, 68 L.Ed. 667, 44 S.Ct. 317; Campbell Sixty-Six Express, Inc. v. Delta Motor Line, Inc., 218 Miss. 198, 67 So.2d 252; Dixie Greyhound Lines v. American Buslines, 209 Miss. 874, 48 So.2d 584; Dixie Greyhound Lines v. Miss. Public Service Comm., 190 Miss. 704, 200 So. 579, 1 So.2d 489; Gulf, Mobile O.R.R. Co. v. Luter Motor Express, 190 Miss. 523, 1 So.2d 231; Magee Truck Lines v. Bond, 190 Miss. 428, 200 So. 586; Southern Bus Lines v. Miss. Public Service Comm., 210 Miss. 606, 50 So.2d 149; Transamerican Freight Lines, Inc. (No. MC-F-4981), 59 M.C.C. 695, 10 Fed. Carrier Cases 241; Tri-State Transit Co. of La. v. Dixie Greyhound Lines, Inc., 197 Miss. 37, 19 So.2d 441; Tri-State Transit Co. of La. v. Mobile O. Transp. Co., 191 Miss. 364, 2 So.2d 845; Tri-State Transit Co. v. Gulf Transport Co., 201 Miss. 744, 29 So.2d 825; United States v. Abilene S.R.R. Co., 265 U.S. 274, 68 L.Ed. 1016, 44 S.Ct. 565; United States v. Baltimore O.S.W.R.R. Co., 226 U.S. 14, 57 L.Ed. 104, 33 S.Ct. 5; West Bros., Inc. v. H L Delivery Service, Inc., 220 Miss. 323, 70 So.2d 870; West Bros., Inc. v. Illinois Cent. R.R. Co., 222 Miss. 335, 75 So.2d 723; Secs. 7659, 7683-84, Code 1942; Mississippi Motor Carrier Regulatory Act of 1942; 42 Am. Jur., Public Administrative Law, Secs. 130, 140; Anno. 18 A.L.R. 2d 552.
F. W. Express, Inc., appellant, filed an application with the Public Service Commission of Mississippi, seeking a certificate of public convenience and necessity to permit its operation as a common carrier of property by motor vehicles in intrastate commerce over U.S. Highway 49 from Jackson, Mississippi to Yazoo City, thence over U.S. Highway 49W to Indianola, and return. Delta Motor Line, Inc., Cook Truck Lines, Inc., and the Illinois Central Railroad Company, hereinafter referred to as appellees, protested the proposed certificate.
On April 2, 1953 the Public Service Commission entered a final order granting and approving the duplicate certificate requested by F. W. Express, Inc. Appellees appealed to the Circuit Court of the First Judicial District of Hinds County, wherein the order of the Public Service Commission was reversed and set aside.
Without setting forth the evidence in detail, suffice it to say that F. W. Express, Inc., operating out of Memphis, Tennessee, served a number of towns in the northwestern part of the State of Mississippi, and sought the certificate here in question in order to connect its established routes with Jackson, Mississippi. Appellees, for some period of time, have provided service over the territory which F. W. Express, Inc. sought to serve.
(Hn 1) It is the well settled law in Mississippi that a certificate of public convenience and necessity shall not be granted a carrier where there is existing adequate service over the route applied for, and, that if inadequate service is being rendered, not until the carrier or carriers operating over the route have been given an opportunity to furnish such additional services as may be reasonably required. This rule was first laid down in 1944 in Tri-State Transit Co. of La. v. Dixie Greyhound Lines, Inc., 197 Miss. 37, 19 So.2d 441, and has been consistently followed. Dixie Greyhound Lines v. American Bus Lines, 209 Miss. 874, 48 So.2d 584; Southern Bus Lines, v. Mississippi Public Service Commission, 210 Miss. 606, 50 So.2d 149; Campbell Sixty-Six Express, Inc. v. Delta Motor Line, Inc., 218 Miss. 198, 67 So.2d 252; West Bros., Inc. v. H. L. Delivery Service, (Miss.) 70 So.2d 870. (The last two decisions cited above have been decided by this Court since the granting of the certificate in the instant case.)
The circuit court correctly held that the record clearly shows that no notice was given appellees by the Public Service Commission to improve their services. This is admitted. Under the law of this State, a certificate such as is here sought cannot be issued until such notice is given and the interested parties given an opportunity to furnish such additional services as may reasonably be required. This rule was made abundantly clear in West Bros. Inc., v. H. L. Delivery Service, supra, where it was manifest that inadequate services were being rendered, but which held that the duplicate certificate was improperly issued by the Public Service Commission on the ground that no notice of inadequate service and opportunity to improve said service had been given.
(Hn 2) The Commission, in conformity with the established rule of law, should have given appellees a reasonable time within which to furnish such additional or improved services as may reasonably be required before issuing the duplicate certificate to F. W. Express, Inc.
Affirmed.
Roberds, P.J., and Lee, Ethridge and Gillespie, JJ., concur.