Summary
In Dixie Greyhound Lines v. American Buslines, 209 Miss. 874, 48 So.2d 584, wherein the action of the Commission in granting a certificate to American Buslines, affirmed by the circuit court, was reversed by this Court, the rule governing the Commission in such cases was reviewed and restated.
Summary of this case from Campbell Sixty-Six Exp. v. Delta M.LOpinion
No. 37572.
November 13, 1950.
1. Carriers — bus lines — certificate of public convenience and necessity.
In granting certificates of public convenience and necessity to a common carrier by motor vehicle the Public Service Commission must give due consideration to existing facilities, and a certificate should not be granted where there is existing adequate service over the route applied for, and, if inadequate, unless the existing carrier has been given an opportunity to furnish such additional service as may be required.
2. Carriers — bus lines — duplication.
Where the Commission has granted a certificate which is in duplication of adequate service already furnished by another certificate holder on the same route or routes the certificate will be cancelled by the courts.
3. Carriers — bus lines — short line to junction with long line highway.
When a certificate holder on a short line route from an important area to a junction with a long line highway shows that in cooperation with the certificate holder on the long line highway it can and will furnish adequate service for the area concerned, the application of another to operate on the short line route will be denied since it would be an unnecessary duplication.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Hinds County; H.B. GILLESPIE, Judge.
Watkins Eager, and Chandler, Shepherd, Herskel Williams, for appellant, Dixie Greyhound Lines, Inc.
I. Before the Commission might grant a certificate to the American Buslines as prayed for in its amended petition as to the highways covered by previous certificate of the Dixie, it was necessary that it prove, first, that the service rendered by the Dixie on its existing certificate was inadequate; second, that the Dixie was either unwilling or unable to supply such additional services, if any, as might be required by the Commission. Secs. 7633, 7639, 7642, 7647 Code 1942.
Certain legal principles are fixed by the statutes as construed by this Court and the Commission in acting on such cases. It is well-settled that where a carrier has a certificate the service may not be duplicated by the Commission if the carrier furnishing the service is supplying adequate service, or is financially able and willing to supply such additional service as the Commission may find to be reasonable and necessary. Before a certificate may be duplicated, notice must be given to the carrier holding a certificate with the original opportunity to supplement the service being furnished. Some authorities state that sixty days' notice is ordinarily sufficient.
The leading case upon the question is Dixie Greyhound Lines, Inc. v. The Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579, 1 So.2d 489.
Tri-State Transit Co. of La., Inc., v. Dixie Greyhound Lines, Inc., 197 Miss. 37, 19 So.2d 441; Tri-State Transit Co. of La., Inc., v. Gulf Transportation Co., 201 Miss. 744, 29 So.2d 825; Magee Truck Lines v. Bond, 190 Miss. 428, 200 So. 586; Gulf, Mobile Ohio Railroad Co. v. Luter Motor Express, 190 Miss. 523, 1 So.2d 231, 194 Miss. 407, 12 So.2d 420; Tri-State Transit Co. v. Mobile Ohio Transportation Co., 191 Miss. 364, 2 So.2d 845.
The following authorities are directly in point and we expressly call the attention of the Court to the announcement on the part of the Supreme Court of Mississippi that the Mississippi statutes are to be construed as near as practical uniformly with the Federal Act, and we especially call the attention of the Court to the federal authorities. Jarrell v. Orlando Transit Co., 167 So. 664; 42 C.J. p. 689; State, etc., v. Department of Public Works of Washington, et al., 205 P. 1088; In re Finance Salters, P.U.R. 1926A, 112 Co. Public Utilities Comm.
In Annotation, 67 A.L.R. 957 the following general rule is stated: "The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required."
The following jurisdictions support the above rules:
(1) Arizona — Corporation Comm. v. Pacific Greyhound Lines, 54 Ariz. 159, 94 P.2d 443.
(2) Arkansas — Santee v. Brady, 209 Ark. 224, 189 S.W.2d 907.
(3) Florida — Florida Motor Lines v. State R. Comm. 101 Fla. 1018, 132 So. 851.
(4) Illinois — Chicago Railways Co. v. Commerce Comm. ex rel. Chicago Motor Coach Co., 336 Ill. 51, 167 N.E. 840.
(5) Kentucky — Barnes v. Consolidated Coach Corp., 223 Ky. 465, 3 S.W.2d 1087.
(6) Louisiana — Bradford v. Louisiana Pub. Serv. Comm., 189 La. 327, 179 So. 442.
(7) Missouri — State ex rel. Scofield v. Public Serv. Comm., 211 S.W.2d 547.
(8) North Carolina — N.C. Utilities Comm. v. Carolina Coach Co., 224 N.C. 390, 30 S.E.2d 328.
(9) North Dakota — Application of Theel Bros. Rapid Transit Co., 72 N.D. 280, 6 N.W.2d 560.
(10) Ohio — Lorain Motor Coach Co. v. Pub. U. Comm. of Ohio, 134 Ohio St. 401, 17 N.E.2d 647; Commercial Motor Freight v. Pub. U. Comm. of Ohio, 138 Ohio St. 151, 33 N.E.2d 989; Motor Freight v. Pub. Utilities, 184 N.E. 11; Canton Coach Co. v. Pub. Utilities, 174 N.E. 244.
(11) South Carolina — Trescot Transfer Co. v. Sawyer, 138 S.C. 337, 136 S.E. 481.
(12) Washington — Shelton v. Anacortes-Mount Vernon State Co., 23 Wn.2d 840, 162 P.2d 450.
(13) West Virginia — McKee v. Pub. Serv. Comm., 124 W. Va. 10, 18 S.E.2d 577.
The general rule is announced by the Supreme Court of the United States in the case of T. N.R.R. Co. v. Northside Railway Co., 276 U.S. 475, 72 L.Ed. 661.
A case exactly in point is that of Missouri Pacific Transportation Co., denied by the Interstate Commerce Commission October 4, 1938, 9 M.C.C. 712.
Opposing counsel in the argument stated that the modern trend was in favor of permitting competition. The trend, we submit, is to the contrary. Illustrative of the trend is the opinion of a three judge Federal Court in Hudson Transit Lines, Inc. v. United States of America and Interstate Commerce Commission, etc., 6 F.C.C., p. 2543, Case No. 80503.
One of the clearest and most comprehensive statements on the subject of public convenience and necessity in the motor carrier field appears in the decision by the Interstate Commerce Commission in the case of Craig Trucking, Inc., Extension, No. Mc-55811, 4 Federal Carrier Cases 505.
II. The undisputed proof showed that the service being performed by the Dixie was adequate or if inadequate in any particular, the Dixie was ready, able and willing to comply with any order or direction which the Commission might make in respect thereto. The proof was equally undisputed that the American was neither able, ready nor willing to furnish the adequate service which it complained that the Dixie was not furnishing.
III. The Commission committed an error of law in failing and refusing to make a finding of the controlling facts in the case.
The Commission merely found that public necessity and convenience required the granting of the certificate to the American Lines, although the undisputed proof was that the American was neither able, ready nor willing to furnish the needed service, if any needed service there was. Our statutes contemplate that the Commission make a finding of facts. The Commission should have found as a fact as to whether or not the Dixie was affording adequate service; if the service was inadequate, as to whether or not it was ready, able and willing to make any correction thereof. Such finding would have been authorized and justified and required under the disputed facts, but such finding would have required the denial of the permit. Not only that, the Commission should have made a finding as to whether or not the American was ready, able and willing to furnish the services which it complains of as to the Dixie and as to the Missala. Such a finding would have required a statement that the American Lines had no interstate permit and was not ready, willing and able to furnish the service which was criticized.
This Court in the case of Dixie v. Miss. Public Serv. Comm., supra, held that it would follow the decisions of the Federal Courts in construing the Motor Vehicle Act. In the case of Inland Freight v. United States (Interstate Commerce Commission), 60 F. Supp. 520, where there was a three judge Federal Court having under review a decision of the Interstate Commerce Commission, the three judge court enjoined the order of the Commission for failing to make a full specific finding of facts.
All of the authorities are gathered in that case. The same conclusion was reached in the case of Chicago Railway Co. v. Commerce Comm., 336 Ill. 51, 167 N.E. 840, 67 A.L.R. 938.
IV. The Commission committed error in failing and refusing to grant to Dixie a certificate of necessity and convenience over Highway 41 from its intersection with Highway 45 to Amory.
The identical question was decided by this Court in Tri-State Transit Co. v. Mobile Ohio Transportation Co., 191 Miss. 364, 2 So.2d 845. In that case there was an application by the subsidiary of the Gulf, Mobile Ohio Railroad to furnish certain services between points in northeast Mississippi. The Tri-State was furnishing service between certain towns in that territory, service was badly needed between certain towns where there was no service, but this Court held that instead of allowing the Mobile Ohio Transportation Company a new certificate which would duplicate certain routes of the Tri-State, the Commission should either permit or require the Tri-State to serve the territory.
V. The certificate of the Dixie Greyhound Lines, its property and its enjoyment should be protected against needless competition. Teche Lines, Inc. v. Board of Supervisors of Forrest County, 165 Miss. 594, 617, 142 So. 24, 143 So. 480; Frost v. Corporation Commission of the State of Oklahoma, 278 U.S. 515, 73 L.Ed. 482; Rock Island Motor Transit Co. v. United States and the Interstate Commerce Commission, 7 F.C.C. 573.
In conclusion we respectfully submit that:
First, the American Buslines has failed to show by a preponderance of the evidence that the service of the Dixie as rendered on Highway 78 is inadequate and inefficient.
Second, it is admitted and conceded that no complaint has ever been made thereof and that the Dixie has never been requested by the Public Service Commission to provide additional service.
Third, it is undisputed that the Dixie is able and willing to furnish such additional service, if any there be, necessary in the judgment of the Commission.
Fourth, such complaints as are made of the Dixie service into Memphis for the most part arise prior to January 1, 1948, upon which date it placed ten buses each way in service, and on July 1, 1948, it placed twelve buses each way in service.
Fifth, The American Lines failed to show that it was ready, able and willing to perform the services from Memphis to Birmingham as to which they criticized the Dixie, but it is conceded that it was unable to furnish the same at that time, had prepared no schedules of service and it would be conceded that it is still unable to furnish the service at this time, in that it has never received the required Interstate Certificate.
Sixth, the Commission should have directed either the Dixie or the Missala to furnish such additional service as may be necessary for the convenience of Amory and its surrounding territory; that both companies are ready, willing and able to furnish such service and have prepared integrated schedules therefor. Stevens Canada, for appellant, Southern Bus Lines, Inc.
Instead of filing a long, separate brief on behalf of our client, we deem it sufficient and appropriate here to refer to the splendid brief on behalf of Dixie Greyhound Lines, and to adopt especially that portion of the brief citing the numerous authorities, not only from our own Court but from other jurisdictions, state and federal, condemning the duplication of franchises and stating the prerequisite facts to be shown before any such duplication could ever be authorized. This Court, in Dixie Greyhound Lines v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579, 1 So.2d 489, and Tri-State Transit Company of Louisiana, Inc. v. Dixie Greyhound Lines, 197 Miss. 37, 19 So.2d 441, and others, laid down the following guide to the Public Service Commission, when it held: "Before an additional certificate may be granted to a competitor over the same route, it must appear from a preponderance of the evidence: First, that the holder of the certificate is rendering inadequate service, and second, that the holder of the certificate is unwilling to improve its service after having been given reasonable opportunity to do so."
As indicated by this statement of the law, certain prerequisite facts must be established by substantial testimony. Is the Public Service Commission bound by this law? If so, the transcript of the evidence must show by preponderance that the prerequisites have been established, and there must be substantial evidence to support an affirmative finding that this rule of law has been applied. The prerequisite facts here were not established. This is a question of law on the record.
This appeal, therefore, presents to this Court for decision a simple but vitally important question of law. Is the Mississippi Public Service Commission still bound by the principles announced in previous decisions of the Mississippi Supreme Court, or can the Commission by a two to one decision authorize the duplication of valuable franchise rights merely because certain lay witnesses testify to the Commission that they desire and would like the service proposed by a new applicant for operating rights? If the Court allows the order of the Commission to remain outstanding, simply because of the Court's hesitancy to disturb the findings of this administrative agency, then, we submit to the Court that the carefully developed principles which have led to the orderly development of a sound and extensive bus industry in the State of Mississippi have gone for naught, and in lieu of these principles, the thousands upon thousands of dollars invested in the development of this industry will be protected only by the whims and caprice of a majority of the members of this administrative tribunal.
Guy Mitchell, Sr. Jr., Hugh A. Hopper and D.D. McDonald, for appellee, American Buslines.
I. The orders and findings of the Public Service Commission are prima facie correct and the reviewing court will not disturb such orders and findings or substitute its judgment for that of the Commission where there is substantial evidence in the record to support the order and the order is not capricious or arbitrary. Sec. 7815 Code 1942; Tri-State Transit Co. v. Gulf Transport Co., 201 Miss. 744, 29 So.2d 830; Dixie Greyhound Lines v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579, 1 So.2d 489; Tri-State Transit Co. v. Dixie Greyhound Lines, 197 Miss. 37, 19 So.2d 441; H. L. Delivery Service v. Mississippi Public Service Commission, 35 So.2d 713.
II. The granting of competitive certificates does not violate the provisions of the Mississippi Regulatory Act of 1938 or any other statutes of this State. The statutes and decisions of the Supreme Court of this State contemplate regulated competition by motor carriers insteady of monopoly. Statutes and decisions of a majority of the other states are in accord with this principle. Secs. 7119, 7122, 7640, 7642, 7633, 7636, Code 1942; Dixie Greyhound Lines v. Mississippi Railroad Commission, 174 Miss. 1, 163 So. 443; Tri-State Transit Co. of La. v. Mobile Ohio Transport Co., 191 Miss. 364, 2 So.2d 845; Teche Lines v. Board of Supervisors of Forrest County, 165 Miss. 594, 142 So. 24; Dixie Greyhound Lines v. Mississippi Public Service Commission, et al., 190 Miss. 704, 200 So. 579, 1 So.2d 489; H. L. Delivery Service v. Mississippi Public Service Commission, 35 So.2d 713; Tri-State Transit Company v. Dixie Greyhound Lines, 197 Miss. 48, 19 So.2d 441; Note 67 A.L.R. 957; Santee v. Brady, 189 S.W.2d 907; State, ex rel. Scofield v. Public Service Commission, 211 S.W.2d 547; Pennsylvania Greyhound Lines v. Public Service Commission, 27 N.E.2d 348; South-eastern Greyhound Lines v. Taylor, 209 S.W.2d 330; Pickwick Greyhound v. The Public Service Commission, 295 P. 647; Southern Kansas State Lines v. Public Service Commission, 11 P.2d 989; M.K. O. Coach Lines v. State, et al., 81 P.2d 660; Southland Greyhound Lines v. Railroad Commission, 73 S.W.2d 604; Hoover Motor Express Co. v. Taylor, 203 So.2d 366; Robinson v. Gallagher Transfer Storage, 125 P.2d 157; Utah Light Traction Co. v. Public Service Commission, 118 P.2d 683; Hall's Motor Transit Co. v. Pennsylvania Public Service Commission, 27 A.2d 428; Coleman v. Drake, et al., 188 S.E. 897; Bradford v. Louisiana Public Service Commission, 179 So. 442; North Alabama Motor Express v. R.R., 12 So.2d 183; Clintonville Transfer Line v. Public Service Commission, 21 N.W.2d 5; Florida Motor Lines Corporation v. Douglas, 7 So.2d 843; Tri-State Transit Co. v. Gulf Transport Co., 201 Miss. 744, 29 So.2d 825; Lang Transportation Corp. v. U.S., 75 F. Supp. 915; Davidson Transfer Storage Co. v. United States, 42 F. Supp. 215; U.S. v. Pierce Auto Freight Lines, 90 L.Ed. 821, 327 U.S. 515.
III. The certificate granted to American Buslines does not violate any provisions of the Constitution of the State of Mississippi or of the Constitution of the United States. Tri-State Transit Co. v. Dixie Greyhound, 19 So.2d 442; Dixie Greyhound Lines v. Mississippi Public Service Commission, 174 Miss. 1, 163 So. 443; Dixie Greyhound Lines v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579; H. L. Delivery Service, et al. v. Mississippi Public Service Commission, 35 So.2d 713; Packard v. Banton, 68 L.Ed. 607; Nebbia v. New York, 78 L.Ed. 957; Stephenson v. Binford, 77 L.Ed. 288, 87 A.L.R. 721; Collins v. Sherman, 31 Miss. 679; Gaines v. Coats, 51 Miss. 335; Mississippi Power Co. v. City of Aberdeen, Miss., 95 F.2d 90.
In conclusion: The necessity and convenience of the traveling public is the primary consideration. The granting of the certificate in this case does not violate the provisions of the Mississippi Regulatory Act of 1938 or any statutes of this State. The said statutes contemplate regulated competition by motor carriers instead of monopoly and no provisions or part of said statutes have been construed by this Court to the contrary.
To follow the course sought by appellant requires this Court to pass on the factual issue and substitute its judgment for that of the Commission; a course which this Court has repeatedly refused to follow. Or it would require this Court to assume a legislative function and write into the statutes of this State provisions which do not exist.
The granting of the certificate to American Buslines does not violate any of the provisions of the Constitution of the State of Mississippi or the Constitution of the United States.
By its application in July 1948, as amended in September following, American Buslines, Inc., sought from the Mississippi Public Service Commission a certificate of public convenience and necessity to operate as a common carrier, over the following route: from the Mississippi-Tennessee state line over U.S. Highway No. 78 to Tupelo, thence over U.S. Highway No. 45 to the junction with State Highway No. 41, thence over State Highways Nos. 41 and 6 to the Mississippi-Alabama state line.
On those dates, Dixie Greyhound Lines, Inc., already held a certificate to operate over this route, except as to that part covered by State Highways 41 and 6. (It also had a certificate for the balance of State Highway No. 78 from Tupelo to the Mississippi-Alabama line, and from the intersection of U.S. Highway 45 with State Highway No. 41 south on 45 to Columbus.)
In like manner, Southern Bus Lines, Inc., already held a certificate to operate in a north and south direction through Tupelo, which covered a stretch of 10 miles on U.S. Highway No. 45 from Tupelo to Shannon.
Also, on those dates, Missala Stages, Inc., held a certificate to operate from the Mississippi-Alabama line over State Highway No. 6 to Amory; thence over State Highway No. 41 to the intersection with U.S. Highway No. 45; and thence west over No. 41 to Okolona.
Dixie, Southern, and Missala all protested against American's application.
In addition, on November 14, 1948, Dixie filed its application for authority to operate from the junction of U.S. Highway No. 45 and State Highway No. 41 east over State Highway No. 41 eight miles to Amory.
The applications were consolidated and heard by the commission on the same record. American's application, with closed doors, between Shannon and Tupelo, was granted, and Dixie's was denied.
The three protestants appealed to the circuit court of Hinds County. Supersedeas was applied for pending appeal, but it was denied. That court affirmed the order of the commission, and denied supersedeas. The protestants have appealed here.
American's application seems to have arisen out of the situation at Amory. This was a railroad town, with no demand for bus transportation, although Missala for some time operated one schedule a day in that area. But, with the prospect of taking off trains, the need for such transportation became obvious. American explored the territory with the idea of furnishing this service, and contemplated the opening of a route from Birmingham to the Mississippi-Alabama line; thence over the route covered by its application; and thence from the Mississippi-Tennessee state line to Memphis. Of course, this set-up had a strong appeal to the citizens in and around Amory. Dixie's line was only 8 miles from Amory, but no one had ever requested it to enter that area. On account of this indifference, it had never sought an extension. When it heard of American's purpose, it sent representatives into that section, but American was more strongly entrenched and appeared to have the preference.
Both sides introduced an array of witnesses. For American there were 91, and for the protestants, 81. Each side also offered, in their respective interests, resolutions from civic clubs and public authorities. The record contains over 900 pages, in addition to a large number of exhibits.
The evidence for American supported these propositions: The area around Amory was in great need of bus transportation. The one schedule a day of Missala was so inadequate as to amount to no transportation at all. A certificate to American would open up a large area, and put the people in close touch with Birmingham and Memphis — the two largest cities in that vicinity. Dixie's service on Highways 45 and 78 was inadequate, and had been inadequate through the years. The derelictions of Dixie consisted of too few busses; insufficient schedules; overcrowded busses with people standing; failure to stop on flag because of overcrowding; absence of, or insufficient, stations at several places; and some grievances against personnel. On cross-examination, however, some witnesses admitted that, commencing in 1948, the service had been improved. (The records disclosed that Dixie has been operating about 12 schedules over this route since that time.) All admitted that they had made no complaint either to Dixie or to the commission. Some witnesses were partisans for American, but others said they were not taking sides — they merely desired the service, and it was immaterial to them as to which company should furnish it.
The evidence for Dixie was to this effect: It had been operating this route since the early 30's. During the war period it was difficult to get busses; and the travel was so heavy that it could not carry all passengers. At times the busses were crowded, and some passengers necessarily stood; at the end of the war period, and, as the busses on order were delivered, they were put on the route and the service was greatly improved. By early 1948, it was getting all the busses needed and running all schedules necessary to take care of the patronage. Many witnesses testified that it had not been necessary for them to stand, or, if so, simply on unusual occasions; crowded busses were rare; the equipment was good; the drivers were courteous; and sufficient busses and schedules were being operated. The service was satisfactory and adequate. No complaint of insufficient service had ever been made to the company. No complaint of any kind had been made to the commission. If its extension of 8 miles to Amory was granted, Dixie, in cooperation with Missala, would run sufficient schedules out of Amory each day, and such others as might be found necessary. Dixie, although contending that it was furnishing adequate service, signified that it was ready, willing and able to furnish additional service, and meet any requirement which the commission might impose.
The evidence for Missala was to this effect: It had run only one schedule into Amory because there had been no demand for bus transportation. It had lost money on the operation. It had worked out an arrangement in cooperation with Dixie to afford Amory and that area adequate transportation. Now that there has been an awakening of the public need for this kind of transportation, it can work out substantial traffic toward the east and to Birmingham also.
From all of the evidence, it is clear that the Amory area stands in need of bus transportation. The adequacy of the service of Dixie on Highways 45 and 78 was in dispute — American denying, and Dixie affirming. But, the number of schedules being run since 1948 indicated a greatly improved service. No complaint of any kind as to adequacy of service was made to Dixie, or to the commission; and the commission itself had preferred no such charge. Dixie was ready, willing and able to provide all necessary service, and to comply with any order of the commission thereon. Missala, in cooperation with Dixie, was ready to run sufficient schedules out of Amory each day. American's proposed route covers about 140 miles in Mississippi. Amory is approximately 120 miles from the Tennessee-Mississippi state line, and 20 miles from the Mississippi-Alabama line. It is only 8 miles from Highway 45 over which Dixie operates. Thus to serve the area of Amory — only 8 miles off of Dixie — or the remaining distance to the Mississippi-Alabama line — only 28 miles off of Dixie, under a certificate to American, would require a duplicate certificate over 112 miles of Dixie's route, and 28 miles over Missala's.
Both sides in an effort to uphold their respective positions and to defeat the contentions of their adversaries on the several questions involved, have cited a large number of cases from this, and other jurisdictions, to which we have given due and careful consideration.
However, our statutes and several of our own cases form the pattern for the determination of this controversy.
(Hn 1) In the granting of certificates, the commission must give due consideration to existing facilities. Paragraph (c), Section 8, chap. 142, Laws of 1938, now Section 7642, Code of 1942, provides: "In determining whether the certificate required by this Act shall be granted, the Commission shall, among other things, give due consideration to the present transportation facilities over the proposed route of the applicant, the volume of traffic over such route, the financial condition of the applicant, and the condition of the highway over the proposed route, or routes."
This Court, in Dixie Greyhound Lines, Inc. v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579, 583, in pointing out the duties of the commission, under Chapter 142, Laws of 1938, with particular reference to unfair competition, and other pertinent responsibilities, said: " The lawmakers necessarily knew that economy and efficiency in the service to the public could not be promoted by the granting of several certificates of public convenience and necessity to different carriers over the same route, nor could the safety and welfare of the public in the use of the highway, the protection of the roadbed from unreasonable, improper, or excessive use, and the franchise rights of existing carriers from destructive competition, be made secure without proper safeguards to guarantee the accomplishment of those ends." (Emphasis supplied.)
With the statute law as it was, Section 7642, supra, and the interpretation of the legislative intent, Dixie Greyhound Lines, Inc. v. Public Service Commission, supra, it is patent that the public policy did not look with favor on unnecessary duplicate certificates. When the commission granted a certificate, manifestly it considered the holder sufficiently able and responsible to carry out his representations and obligations. Section 7649, Code of 1942. The powers vested in the commission enabled it to require performance if any dereliction, in fact, occurred. Section 7651, Code of 1942. The commission could depend on the readiness of the public to complain if service was inadequate. This afforded the opportunity to require performance. Upon failure so to do, it could take necessary action to assure satisfactory and adequate service. Chapter 4, vol. 6, Code of 1942.
It is no wonder then, with such background, this Court in Tri-State Transit Co. v. Dixie Greyhound Lines, 197 Miss. 37, 19 So.2d 441, 444, laid down the following rule: "The rule is, and we find no authority to the contrary, that a certificate should not be granted where there is existing adequate service over the route applied for, and, if inadequate, unless the existing carrier has been given an opportunity to furnish such additional service as may be required." (Emphasis supplied.) In other words, if the existing service is adequate, it would not be fair to allow a competitor on the same route. This does not foster monopoly, because the rates and charges must be just and reasonable. Section 7657, Code of 1942. Likewise, if the commission is apprised that the service is inadequate, it should give the carrier an opportunity to furnish the additional service as it may require. This rule rests on sound philosophy, and accords with reason, common sense, and justice. The certificate holder must make a large outlay of capital, he must buy and equip busses, arrange for depots, and organize personnel. If, at occasional intervals, the service is not perfect or adequate, another franchise should not be granted, if the existing carrier is ready, willing and able to conform to such order as the commission may make in respect to additional facilities.
In Tri-State Transit Co. v. Gulf Transport Co., 201 Miss. 744, 29 So.2d 825, this Court, while citing Tri-State Transit Co. v. Dixie Greyhound Lines, supra, for another purpose, must have had before it, the full significance of the rule there announced. In that case the Court held that the commission was not in error in declining to grant the partially duplicate certificate applied for by Gulf Transport Company. It noted the fact that Tri-State had received no complaint as to its service, and that the commission had not requested it to add additional busses or to change its schedules. Besides, it was prepared and ready to add such additional busses and make such changes in its schedules as the commission might request. Consequently, while the Court did not expressly refer to the rule announced in Tri-State Transit Co. v. Dixie Greyhound Lines, supra, it did not depart therefrom, and the decision came within that pronouncement.
The appellants, in their reply brief, ask this Court to take judicial notice that, although American obtained its certificate, and supersedeas was allowed by neither the commission nor the circuit court, yet it has put into effect only one bus, starting from the Mississippi-Alabama line at 6:00 a.m. and arriving at the Mississippi-Tennessee line at 9:30 a.m., and leaving there at 3:00 p.m., and returning to the point of origin at 6:00 p.m. It is urged that this slight schedule shows that American will not operate the intrastate part of this route unless it also obtains an interstate certificate. American makes no response to this contention.
The appellants, in their reply brief, also ask this Court to take notice of the fact that, upon the hearing by the Examining Board of the Interstate Commerce Commission at Birmingham, the application of American for an interstate permit was denied. It is contended that, although this hearing was subsequent to the trial of this cause, it shows that American is not in position to make good on its offer of service over this route. Neither does American respond to this contention.
However, in view of our conclusion, it is not necessary to consider these questions, or either of them.
We rest this decision on the manifest intention of the Legislature in its enactments, as construed by this Court, in the cases relied on hereinabove. We find no better statement of the rule concerning the grant of duplicate certificates than that announced in Tri-State Transit Co. v. Dixie Greyhound Lines, as quoted, supra.
(Hn 2) The certificate granted to American duplicated the routes of both Dixie and Missala Stages, and was contrary to the law, and the action of the commission thereon is reversed, and judgment is entered here canceling the certificate.
(Hn 3) The denial of a certificate to Dixie for the 8 miles from the junction of Highways 41 and 45 to Amory was in accordance with the law, inasmuch as Missala Stages represented that it, in cooperation with Dixie, could and would provide adequate service for the Amory area, and the granting of such certificate would have been duplicating as against Missala. This phase of the order of the commission is affirmed.
Reversed and rendered in part, and in part, affirmed.