Summary
In Magee Truck Lines, Inc. v. Bond, 190 Miss. 428, 200 So. 586, this court did reverse the decision of the Public Service Commission because "the record contains no substantial evidence to sustain the finding of the Commission...".
Summary of this case from Mississippi St. Bd. of Vet. Ex. v. WatkinsOpinion
No. 34327.
February 24, 1941.
1. AUTOMOBILES.
The Public Service Commission in granting a certificate of public convenience and necessity to a motor carrier under the grandfather clause of the Motor Carrier Regulatory Act is the judge of the credibility of the testimony, and the circuit court on appeal is not authorized to substitute its judgment for that of the commission where there is "substantial evidence," that is, more than a scintilla of evidence, to support the finding complained of, or unless the judgment is manifestly against the evidence (Laws 1938, ch. 142, secs. 8, 28).
2. AUTOMOBILES.
A finding of the Public Service Commission that an applicant for a certificate of public convenience and necessity was engaged in a bona fide operation as a motor carrier of freight and other commodities over route in question on January 1, 1938, and since that time, and was thus entitled to a certificate under the grandfather clause of the Motor Carrier Regulatory Act, was not sustained by substantial evidence, and no presumption which the law indulges in favor of the correctness of the commission's finding would supply the lack of evidence (Laws 1938, ch. 142, sec. 8).
APPEAL from the circuit court of Hinds county, HON. J.P. ALEXANDER, Judge.
Stevens Stevens, of Jackson, and Dudley W. Conner, of Hattiesburg, for appellant.
Applicant was not in operation at all on January 1, 1938, and continuously thereafter.
49 U.S.C.A. 301 (a), 52 Stat. 1238; Laws 1938, Chap. 142, Sec. 8 (a); U.S. v. Maher, 307 U.S. 148, 83 L.Ed. 1162; Maher, Common Carrier Application No. MC-59620, 3 I.C.C., M.C.C. 479; McDonald v. Thompson, 305 U.S. 263, 83 L.Ed. 164; Loving et al. v. U.S. and Interstate Commerce Com., 32 F. Supp. 464, 60 S.Ct. 898, 84 L.Ed. 818.
The applicant, Bond Motor Lines, appellee herein, could not acquire any rights over the route involved from Winona to the Mississippi-Tennessee State Line, by virtue of operations conducted by another carrier.
System Arizona Express Service, Inc., Common Carrier Application No. MC-59074, 4 I.C.C., M.C.C. 129; Clairmont Common Carrier Application, 7 I.C.C., M.C.C. 76; New England Transportation Co., Common Carrier Application, 12 I.C.C., M.C.C. 461.
The findings of the Public Service Commission are not conclusive.
State ex rel. Puget Sound Power and Light Co. v. Dept. of Public Works, 181 Wn. 105, 42 P.2d 424, 8 P.U.R. (N.S.) 461; Erie R.R. Co. v. Public Utilities Com. of Ohio, 126 Ohio St. 231, 184 N.E. 849; Chicago, etc., Ry. Co. v. State, 123 Okla. 190, 252 P. 849.
The court should review and weigh the evidence, and while the court will not substitute its judgment for that of the Commission, it will reverse the Commission in those cases in which the findings of the Commission are manifestly against the weight of the evidence. It is well settled in Mississippi that the action of the Public Service Commission in granting or denying a Certificate of Public Convenience and Necessity is an exercise of a quasi-judicial function and appealable as such.
Secs. 7037, 7125, Code 1930; Y. M.V.R.R. Co. v. Miss. R.R. Com., 169 Miss. 131, 152 So. 649.
Applicant's operation is not bona fide.
Secs. 7115-7138, Code of 1930; McDonald v. Thompson, supra.
W.W. Pierce and Lotterhos Travis, all of Jackson, for appellee.
The order of the Public Service Commission granting the Certificate of Convenience and Necessity to the appellee is conclusive of the appellee's right thereto.
The order of the Public Service Commission appealed from in this case is prima facie evidence that the determination of the Public Service Commission is right and proper.
The right of the court to review is, therefore, limited to determining whether the Commission's finding is without any foundation in the evidence or a constitutional right of the appellant has been infringed upon by such finding.
I.C.C. v. U.P. Ry. Co., 222 U.S. 541, 32 S.Ct. 108, 56 L.Ed. 308; Western Union Tel. Co. v. Miss. R.R. Com., 70 Miss. 80; Chaps. 139, 142, Laws of 1938; Sec. 7038, Code 1930; Claiborne-Annapolis Ferry Co. v. U.S., 285 U.S. 382, 76 L.Ed. 808; Atchison, T. S.F. Ry. Co. v. U.S., 284 U.S. 248, 76 L.Ed. 273; I.C.R.R. Co. v. I.C.C., 206 U.S. 441, 51 L.Ed. 1128; Cincinnati, H. D.R. Co. v. I.C.C., 206 U.S. 142, 51 L.Ed. 995; Chicago, R.I. P.R. Co. v. U.S., 284 U.S. 80, 76 L.Ed. 177; Adams v. Mills, 286 U.S. 397, 76 L.Ed. 1184; Western Paper Co. v. U.S., 271 U.S. 268, 70 L.Ed. 941; Merchants Warehouse Co. v. U.S., 283 U.S. 501, 75 L.Ed. 1227; State of Ohio v. U.S., 292 U.S. 498, 78 L.Ed. 1388; State of Fla. v. U.S., 292 U.S. 1, 78 L.Ed. 1077; Interstate Commerce Com. v. Oregon-Washington R.R. Navigation Co., 288 U.S. 14, 77 L.Ed. 588; Ga. Public Service Com. v. U.S., 293 U.S. 765, 75 L.Ed. 1397; Public Utilities Com. of Colo. et al. v. City of Loveland, 289 P. 1090, P.U.R., 1931A, 212; People ex rel. Albany Transit Co. v. Public Service Com., 230 App. Div. 132, 243 N.Y. Supp. 486, P.U.R., 1931A, 420; A.T. S.F. Ry. Co. v. I.C.C., 335 Ill. 70, 166 N.E. 466; Deppman v. Dept. of Public Works, 151 Wn. 78, 275 P. 70; Palmyra Tel. Co. v. Modesta Tel. Co., 336 Ill. 158, 167 N.E. 860, P.U.R., 1930A, 295; Sandiego Co. Ferry Co. v. Railroad Com. (Colo.), 292 P. 640, P.U.R. 1930E, 644; Thomas Cusack Co. v. Chicago, 242 U.S. 526, 37 Sup. Ct. 190, 61 L.Ed. 472; Wichita Gas Co. v. Public Service Com., 132 Kan. 459, 295 P. 668, P.U.R. 1931B, 442; Smith v. Wald (Tex.), 97 S.W.2d 991; Pittsburg Ry. Co. v. Public Service Com. (Pa.), 188 A. 549; York v. Public Service Com., 169 A. 396; Railroad Com. v. Brown (Tex.), 106 S.W.2d 327; Keel v. Railroad Com. (Tex.), 107 S.W.2d 439; Cleveland v. Public Utilities Com. (Ohio), 16 N.E.2d 339; Lorain v. Public Utilities Com. (Ohio), 17 N.E.2d 647; State v. Public Service Com. (Mo.), 132 S.W.2d 1080; Jessup v. Commonwealth (Va.), 5 S.E.2d 482; Pa. Greyhound Lines v. Public Service Com. (Ind.), 27 N.E.2d 348; Modern Transfer Co. v. Pa. Public Utilities Com. (Pa.), 12 A.2d 458; In Re Dakota Transportation, Inc. (S.D.), 291 N.W. 589; Miss.-Gulfport Compress v. Public Service Com. (Miss.), 196 So. 793; Shields v. Utah Idaho Central R.R. Co., 305 U.S. 177, 83 L.Ed. 111; North Bend Stage Line v. Dept. of Public Works, 162 Wn. 46, 297 P. 780, P.U.R., 1931C, 484.
In the case at bar, the Commission has, on conflicting evidence, found as a fact that there was a bona fide operation over a regular route on the statutory date, and this finding must be accepted by the court, which results in an affirmance of this case.
No exact definition of "bona fide" can or should be made, but the decision is for the Commission, taking into consideration all of the facts and circumstances. The main premise laid down is that operations alone will not be sufficient, but the operations must be in good faith, and further that where the operations are in direct conflict with positive provisions of the orders of the state commission under a valid state law and are thus in defiance of state law, they should not be considered as bona fide. The operations of appellee were not in defiance of any order of the Commission, nor, we submit, in defiance of the state law. They were operations without express consent of the state, it is true, under the old law, but during a period when such confusion and uncertainty existed as that neither the Commission nor carriers generally knew how to handle the situation.
McDonald v. Thompson, 305 U.S. 263, 83 L.Ed. 164.
Argued orally by John Morgan Stevens and Dudley W. Conner, for appellant, and by W.W. Pierce and Fred Lotterhos, for appellee.
This case involves the validity of a certificate of public convenience and necessity issued by the Public Service Commission to appellee under Section 8 of Chapter 142 of the Laws of 1938, which is colloquially referred to as the grandfather clause of the Mississippi Motor Carrier Regulatory Act. That section of the Act provides, among other things, that: "No common carrier by motor vehicle . . . not herein exempted shall engage in intrastate operation on any highway within the state unless there is in force with respect to such carrier, a certificate of public convenience and necessity issued by the commission authorizing such operation; provided, however, that if any such carrier or predecessor in interest was in bona fide operation as a common carrier or restricted common carrier by motor vehicle on January 1, 1938, over the route or routes, or within the territory for which application is made and has so operated since that time, . . . the commission shall issue such certificate without requiring further proof that public convenience and necessity will be served by such operation, and without further proceedings . . ."
Under this section of the Act, the applicant is required to state in his petition, among other things, the names of the existing carriers serving the route, or territory proposed to be served, and who will be affected by the proposed service. Thereupon, the Commission is required to fix a time and place for hearing such application, not less than twenty days after the filing thereof. The hearing provided for was had, presumably upon notice to the existing carriers serving the route or routes included in the application, and the testimony was taken by the official reporter of the Commission and transcribed as a part of the record in order that the State or any party aggrieved by the judgment of the Commission might take an appeal to the First Judicial District of the Circuit Court of Hinds County, as provided for under Section 28 of the said Act. Among other protestants was the appellant, Magee Truck Lines, Inc., an existing carrier of freight and other commodities over one of the proposed routes involved. The testimony was addressed to the nature and character of the appellee's operation on January 1, 1938, and thereafter over several proposed routes, but the appeal to the circuit court related only to the route over U.S. Highway 51 from Winona, Mississippi, to the Mississippi-Tennessee State Line, and the sole question to be decided here is whether or not there was any substantial evidence to support the finding of the Commission to the effect that the appellee was in fact engaged in bona fide operation as a common carrier of freight and other commodities over said route on January 1, 1938, and had so operated since that time when the application was filed on November 5, 1938.
Even if it were of decisive importance, and as to which see Dixie Greyhound Lines, Inc., v. Mississippi Public Srevice Commission et al., 200 So. 579, 190 Miss. 704, it will be seen that the Commission had before it for decision a past fact in controversy, and was therefore acting judicially, in rendering the judgment appealed from. Gulf S.I.R. Co. v. Wirt Adams, State Revenue Agent, 85 Miss. 772, 38 So. 348; Cumberland Tel. Tel. Co. v. State, 135 Miss. 835, 100 So. 378. The power of judicial review was upheld in the first of the two cases above referred to, and denied in the latter one, on the sole ground that the judgment appealed from in the former instance involved a decision of a past or present fact in controversy, whereas in the latter case it did not.
In rendering the judgment here appealed from, the Public Service Commission was the judge of the credibility of the testimony, and the court is not authorized to substitute its judgment for that of the Commission where there is substantial (that is, more than a scintilla of) evidence to support the finding complained of, or unless, as stated in the case of Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, supra, and the many decisions cited therein, the "judgment is manifestly against the evidence." Here, however, the record contains no substantial evidence to sustain the findings of the Commission to the effect that the appellee was engaged in a bona fide operation as a motor carrier of freight and other commodities over the route in question on January 1, 1938, and since that time. Only one witness, C.M. Wann, traffic manager of the appellee, testified. His oral testimony, as substantiated by the records of the appellee, disclosed a shipment on December 9th from Jackson to Greenwood where it was delivered to another carrier and conveyed to some point on the route over which the certificate was granted. Then, on February 10, 1938, there were other shipments, consisting of Sears-Roebuck Company catalogues, and a further shipment on April 30, 1938, from Columbia, Mississippi, to Batesville, Mississippi, a destination on the route in question. There were seventeen additional shipments from June 11th to November 4, 1938, inclusive. In other words, there were no shipments whatever on January 1, 1938, and for a period of forty-one days thereafter, and then no further shipment from February 10, 1938, until April 30th of that year; nor were there any during the month of May. In testifying in regard to the operations over the several routes involved in the application, the witness stated on direct examination that the busses ran over the route during five days of each week, but he admitted on cross-examination that the route was traversed only when they had freight to carry, and the records of the appellee disclosed, as hereinbefore set forth, as to when there was freight hauled. Therefore, instead of the evidence disclosing that the appellee was engaged in a bona fide operation over the route on January 1, 1938, and continuously thereafter, it clearly shows without dispute that he was not so engaged. No presumption which the law indulges in favor of the correctness of the Commission's finding will supply the lack of evidence. The judgment appealed from must therefore be reversed and the application dismissed.
Reversed and judgment here for the appellant.