Summary
In Tri-State Transit Company of Louisiana v. Dixie Greyhound Lines, 197 Miss. 37, 19 So.2d 441, this Court said that: "In proceedings on application of motor carrier for additional certificate of public necessity and convenience, the Public Service Commission's findings are prima facie correct and reviewing court cannot substitute its judgment for that of Commission and disturb its findings where there is any substantial basis in evidence for such findings or where ruling of Commission is not capricious or arbitrary.
Summary of this case from Tri-State Trst. Co. v. Gulf Trsp. Co.Opinion
No. 35691.
October 9, 1944.
1. AUTOMOBILES.
In proceedings on application of motor carrier for additional certificate of public necessity and convenience, the Public Service Commission's findings are prima facie correct and reviewing court cannot substitute its judgment for that of Commission and disturb its findings where there is any substantial basis in evidence for such findings or where ruling of Commission is not capricious or arbitrary (Code 1942, secs. 7633, 7815).
2. AUTOMOBILES.
Where motor carrier, having interstate certificate of public necessity and convenience over route for which competing carrier had an intrastate as well as an interstate certificate, made application for an intrastate certificate, substantial evidence supported determination on Public Service Commission that public necessity and convenience did not require granting of application even for six months after duration of war (Code 1942, secs. 7633, 7815).
3. AUTOMOBILES.
A certificate of public necessity and convenience should not be granted to a motor carrier where there is an 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 (Code 1942, sec. 7633).
4. AUTOMOBILES.
Question whether substantial evidence supports findings of circuit court made on appeal from determination of Public Service Commission on application of motor carrier for certificate of public necessity and convenience must be determined by Supreme Court's consideration of testimony before the Commission and is not controlled by opinion of circuit court (Code 1942, sec. 7815).
APPEAL from the circuit court of Hinds county, HON. H.B. GILLESPIE, Judge.
Stevens Stevens, of Jackson, for appellant.
It is the public policy of this state that an existing certificated carrier shall be protected against duplication of a franchise and unfair competition.
Laws of 1938, Ch. 142, Sec. 2; Pond on Public Utilities, p. 10.
The value of the testimony of public witnesses is difficult to appraise since public sentiment almost invariably favors additional service even where clearly unwarranted, while those opposed to competitive carrier interests are usually satisfied users of existing facilities. In both instances, therefore, such testimony must be largely discounted.
Santa Fe Trail Stages, Inc., Common Carrier Application, 21 M.C.C. 725.
The circuit court is not authorized to substitute its judgment for that of the Commission. Such are the recent rulings of this court.
Dixie Greyhound Lines v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579; Magee Truck Lines, Inc., v. Bond, 190 Miss. 428, 200 So. 586; Yazoo M.V.R. Co. v. Mississippi Railroad Commission, 169 Miss. 131, 152 So. 649; Code of 1930, Sec. 73.
There is a prima facie presumption that the findings of fact by the Mississippi Public Service Commission are correct.
Secs. 7037, 7038, Code of 1930, being Secs. 7814, 7815, Code of 1942 annotated.
In some of the states, by express statutory authority, and now in Mississippi under the 1938 statute, the court has been given the power to review the orders of the Public Service Commission, but even in those states it is held that the court will not substitute its judgment for that of the Commission.
Dixie Greyhound Lines v. Mississippi Railroad Commission, 174 Miss. 1, 163 So. 443; Mississippi-Gulfport Compress Warehouses v. Public Service Commission, 189 Miss. 166, 196 So. 793; Magee Truck Lines, Inc., v. Bond, supra; Tri-State Transit Co. of Louisiana, Inc., v. Mobile Ohio Transportation Co., 191 Miss. 364, 2 So.2d 845; Gulf Mobile Ohio R.R. et al. v. Luter Motor Express, 194 Miss. 407, 12 So.2d 420; Hammond Lumber Co. v. Public Service Commission of Oregon, 9 A.L.R. 1223; Mill Creek Coal Coke Co. v. Public Service Commission (W. Va.), 7 A.L.R. 1081; Norfolk W.R. Co. v. Public Service Commission, 8 A.L.R. 1055; A., T. S.F. Ry. Co. v. Illinois Commerce Commission, 335 Ill. 70, 166 N.E. 466; Wichita Gas Co. v. Public Service Commission, 132 Kan. 459, 295 P. 668, P.U.R. 1931B, 442; Deppman v. Department 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; San Diego Co. Ferry Co. v. Railroad Commission (Cal.), 292 P. 640, P.U.R. 1930E, 644; Laws of 1938, Ch. 142; 42 C.J. 692.
The circuit court erred in reversing the Public Service Commission and in granting any certificate to the Dixie Greyhound Lines, because (a) there was not only substantial evidence to support the order appealed from, but there was a direct conflict of the testimony, and (b) 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.
Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission et al., supra.
It is contrary to the policy of the Commission, and the policy declared by the statute, and is illegal, to superimpose franchise rights to the damage of an existing carrier.
Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission et al., supra; Teche Lines, Inc., v. Board of Supervisors of Forrest County, 165 Miss. 594, 142 So. 24, 143 So. 486; Adams v. Bullock, 94 Miss. 27, 47 So. 527, 19 Ann. Cas. 165; Frost v. Corporation Commission of the State of Oklahoma, 278 U.S. 515, 73 L.Ed. 483; T. N.R.R. Co. v. North Side Railway Co., 276 U.S. 475, 72 L.Ed. 661; Motor Freight, Inc., v. Public Utilities Commission (Ohio), 184 N.E. 11; Missouri Pacific Transportation Co. v. Teche Greyhound Lines, decided by the Interstate Commerce Commission, October 4, 1938, Volume 9, at page 712; Continental Freight Forwarding Co. v. Public Utilities Commission (Ohio), 183 N.E. 790; Canton Coach Co. v. Public Utilities Commission (Ohio), 174 N.E. 244; Jarrell v. Orlando Transit Co. (Fla.), 167 So. 664, 667; Stark Electric Ry. Co. v. P.U. Com. of Ohio, 161 N.E. 210; State, etc., v. Department of Public Works of Washington et al., 250 P. 1088; In re Finance Salters, P.U.R. 1926A, 112; Superior Motor Bus Co. v. Community Motor Bus Co. (Ill.), 150 N.E. 668; West Suburban Transportation Co. v. Chicago West Towns Railway Co., 309 Ill. 87, 140 N.E. 56; Central Truck Lines v. Railroad Commission (Fla.), 160 So. 26; 42 C.J. 689; Public Utilities Reports, 1926A, p. 180, 1927B, p. 163, 1927E, p. 333; Pond, Public Utilities, p. 10.
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 not adequate or additional service would benefit the general public and unless the existing carrier has been given an opportunity to furnish such additional service as may be required and has failed to do so.
Fulmer v. Railroad Commissioners et al. (Mont.), 28 P.2d 849; Cardinal Bus Lines v. Consolidated Coach Corporation, Inc., et al. (Ky.), 72 S.W.2d 7; Chicago Railways et al. v. Commerce Commission, etc. (Ill.), 167 N.E. 840; Public Service Inter-State Transportation Co., Inc., v. Public Service Commission, 251 N YS. 351; Pennsylvania Railroad Co. et al. v. Public Utilities Commission of Ohio, 176 N.E. 573; Egyptian Transportation Co., Inc., v. L. N.R. Co. (Ill.), 152 N.E. 510; Consolidated Coach Co. v. Kentucky River Coach Co. et al. (Ky.), 60 S.W.2d 127; Florida Motor Bus, Inc., v. State Railroad Commission (Fla.), 132 So. 851; Re City Cab Service, Inc. (Conn.), Public Utilities Reports 1930A, 113; 67 A.L.R. 938, 957.
The learned circuit court granted the Dixie Greyhound Lines something which it did not ask or request of the Mississippi Public Service Commission, and the court is in the attitude of having reversed the Commission on a point not relied on at the original hearing.
As a general rule, a question cannot be presented on appeal where the court below was not requested to act on it. The circuit court acted purely as a court of appeal and has substituted its judgment for that of the Commission. We do not question the power of the Commission to grant an application in part. We do not question the inherent power of the circuit court to modify the findings of the Commission. We do earnestly contend, however, that an appellate court should not adopt a view which was not requested of the tribunal or court of original jurisdiction.
Huston v. King, 119 Miss. 347, 80 So. 779, headnote 4; Mitchell v. Finley, 161 Miss. 527, 137 So. 330, headnote 3; Dixie Greyhound Lines v. Mississippi Public Service Commission, 190 Miss. 704, 1 So.2d 489, on suggestion of error; 5 C.J.S., pars. 1803, 1804.
The order of the learned circuit court granting in part the original application for certificate rights would necessarily violate the very terms of the franchise rights which the Dixie Greyhound Lines, Inc., obtained from the Interstate Commerce Commission and would permit it as an applicant before the Commission arbitrarily to create a situation and claim an advantage as a result thereof.
Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, supra; Motor Carrier Act of 1935, Sec. 208; 49 U.S.C.A., Sec. 308.
The contention of appellee that since the learned circuit court has found on the record that the Public Service Commission should be reversed then the burden is upon appellant to show that the findings of fact by Judge Gillespie are manifestly wrong has no application to the case at bar.
Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, supra; Magee Truck Lines v. Bond, 190 Miss. 428, 200 So. 586; Teche Lines, Inc., v. Board of Supervisors of Forrest County, supra; Gulf, Mobile Ohio R.R. v. Luter Motor Express, 190 Miss. 523, 1 So.2d 231; Code of 1942, Secs. 7038, 7641; Laws of 1938, Sec. 28, Ch. 142; Griffith's Mississippi Chancery Practice, pars. 605, 674; 5 C.J.S. 786, par. 1670; 43 Am. Jur. 718, par. 221, p. 726, par. 229.
See also People ex rel. N.Y. Central, etc., R. Co. v. Public Service Commission of New York, 227 N.Y. 248, 125 N.E. 438; People ex rel. Public Service Interstate Transportation Co. v. Public Service Commission et al., 262 N.Y. 39, 186 N.E. 195; City of New York v. Fullen, 276 N.Y. 574, 12 N.E.2d 583; Clark v. City of New York, 28 N.Y. Supp. 2d 110, 176 Misc. 893; Union Bus Co. et al. v. Douglas (Fla.), 166 So. 582.
Watkins Eager, of Jackson, McClure Fant, of Sardis, and Longstreet Heiskell, of Memphis, Tenn., for appellee.
The order of the Mississippi Public Service Commission appealed from was not sustained by substantial evidence but upon the other hand was against the overwhelming weight of the testimony in the case. The circuit court has so determined upon all the evidence and the appellant must show error therein.
Cole v. Cole, 194 Miss. 292, 12 So.2d 425; Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission et al., 190 Miss. 704, 200 So. 579; Doty v. Lucas, 43 Miss. 337; Federal Land Bank v. Morris (Miss.), 11 So.2d 210; Green v. Creighton, 7 Smedes M. (15 Miss.) 197; Hill, Fontaine Co. v. Bloom, Goldsmith, Tachan Co., 1 Miss. Dec. 385; Howard v. Dickson, 105 Miss. 582, 62 So. 644; Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597; Magee Truck Lines, Inc., v. Bond, 190 Miss. 428, 200 So. 586; Mississippi State Highway Department v. Meador, 184 Miss. 381, 185 So. 816; Montgomery Ward Co. v. Windham, 195 Miss. 848, 16 So.2d 622; Pender v. Felts, 2 Smedes M. (10 Miss.) 535; Rayl v. Thurman, 156 Miss. 8, 125 So. 912; Scharff v. Chaffe, 68 Miss. 641, 9 So. 897; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747; Thomas v. Williamson, 185 Miss. 83, 187 So. 220; Tri-State Transit Co. of Louisiana v. Mobile Ohio Transp. Co., 191 Miss. 364, 2 So.2d 845; Truckers Exchange Bank v. Conroy, 190 Miss. 242, 199 So. 301; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Jones v. United States, 55 F.2d 574; Ventress v. Smith, 35 U.S. (10 Pet.), 161, 9 L.Ed. 382; Code of 1942, Sec. 7632 et seq.
The appellee by the acceptance of the franchise of the certificate applied for would not violate its federal franchise.
No constitutional right of the appellant is invaded by granting to appellee the certificate prayed for.
Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, supra; 42 C.J. 689.
The circuit court committed error in restricting the cross-appellee in the use of its certificate.
Argued orally by J.M. Stevens, Sr., and J.M. Stevens, Jr., for appellant, and by W.H. Watkins and James McClure, for appellee.
The appellant, the Tri-State Transit Company, has a certificate of public necessity and convenience (a franchise) from the Interstate Commerce Commission to do an interstate business between Jackson and the Tennessee line, which is only a few miles south of Memphis in that state, and from the Public Service Commission of this state to do a local business between those points. It makes six round trips per day between Memphis and Jackson, four of which operate as through busses and two local.
The appellee, the Dixie Greyhound Lines, has a franchise from the Interstate Commerce Commission to carry on an interstate business between Jackson and the same point on the Tennessee line with closed doors; in other words, under the franchise it can neither take on nor let off passengers between those two points. It applied to the Public Service Commission of the state for a franchise to add a local business and in addition the right to take on and let off in the state interstate passengers. It had no such right from the Interstate Commerce Commission but claimed that it would apply for it after the state had granted the franchise it was asking for. The Tri-State Company protested against the granting to the Dixie Company of such additional franchise. There was a hearing before the Public Service Commission at which thirty-nine witnesses testified for the Dixie Greyhound Company and thirty-one for the Tri-State Company. The Public Service Commission denied the franchise. From that judgment an appeal was prosecuted to the circuit court by the Dixie Company where there was a trial on the record made before the Public Service Commission. The circuit judge reversed the judgment of the Public Service Commission to the extent that he permitted the Dixie Company to operate busses as applied for until the expiration of six months after the end of the war. From that judgment the Tri-State Company appeals to this court and the Dixie Company cross-appeals.
In considering the questions involved it would be very well to have in mind the language of the statute declaring the policy of the state regarding the use of its highways for public traffic, which is found in Section 2, Chapter 142, Laws 1938, Section 7633, Vol. 6, Code 1942:
"It is hereby declared to be the policy of the legislature to regulate motor carriers in the public interest to the end that the safety and welfare of the public in its use of the highways and of the transportation agencies by motor vehicle used thereon may be practiced; that the property of the State in its highways may be protected from unreasonable, improper and excessive use; that the inherent advantages of highway transportation may be recognized and preserved; that sound economic conditions in such transportation and among such carriers may be fostered; that the service by motor carriers may be adequate, economical, and efficient; that reasonable charges may be made therefor, without unjust discriminations, undue preferences or advantages, and unfair or destructive competitive practices; that relations between motor carriers and other carriers may be improved and coordinated; and that cooperation may be maintained with the governments of the United States, and the several States, and with their duly authorized officials in carrying out the purposes and provisions of this Act. This Act shall apply to persons and motor vehicles engaged in interstate commerce to the extent permitted by the Constitution and laws of the United States and as provided herein."
Pond on Public Utilities, page 10, has this to say with reference to the policy: "If, as experience seems to justify and require, regulation is to take the place of competition in this as in other fields of public utilities, in order to avoid the expense of needless duplication of investment and operating cost for the purpose of securing the best possible service at the least expense, motor buses, trucks, and all similar forms of common carrier service must be regulated and controlled by impartial state commissions of trained experts having jurisdiction over public utilities generally, and especially over all forms of communication and transportation."
The evidence for the Dixie Company tended to show that the public convenience and necessity would be promoted by granting the franchise it applied for. The evidence for the Tri-State Company, which was substantial, tended to show the contrary. Everybody knows that during the war there has been and is now great overcrowding on all public carriers of passengers. The courts are authorized to take judicial notice without any proof of what everybody knows. It is true that the evidence tended to show that the Dixie Company had some vacant seats on its busses operating between Memphis and Jackson. It also tended to show that the busses operated by it on Highway 49 were as much overcrowded as any in the state. It appeared from the evidence that the overcrowding on the Tri-State's busses between Memphis and Jackson occurred principally between local stations. No one ever made complaint before the Public Service Commission that the Tri-State Company was not furnishing adequate service, nor did the Commission of its own initiative make such complaint.
With reference to the finding of facts by the Public Service Commission, Section 7815, Vol. 6, Code 1942, provides as follows: "All findings of the commission and the determination of every matter by it shall be made in writing and placed upon its minutes, and proof thereof shall be made by a copy of the same duly certified by the secretary under the seal of the commission; and whenever any matter has been determined by the commission, in the course of any proceeding before it the fact of such determination, duly certified, shall be received in all courts and by every officer in civil cases as prima facie evidence that such determination was right and proper; and the record of the proceedings of the commission shall be deemed a public record, and shall at all seasonable times be subject to the inspection of the public."
The findings of fact of the Public Service Commission are prima facie correct, "the reviewing court can not substitute its judgment for that of the Commission and disturb its finding where there is any substantial basis in evidence for such finding or where the ruling of the commission is not capricious or arbitrary." 42 C.J. 692.
In Tri-State Transit Co. v. Mobile Ohio Transp. Co., 191 Miss. 364, 2 So.2d 845, 847, the court used this language in discussing this question: "The sole question presented to us for the decision is whether or not the action of the Commission was arbitrary, not supported by substantial evidence, or was manifestly against the evidence." To the same effect is Gulf Mobile O.R.R. Co. et al. v. Luter Motor Express Co., 194 Miss. 407, 12 So.2d 420.
Those principles apply to the cross-appeal as well. The cross-appeal involves whether it was error for the circuit court to grant the Dixie Company a franchise for local travel until six months after the duration of the war. The Public Service Commission had substantial evidence before it that the public necessity and convenience did not require such an order.
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. Chicago Rys. Co. v. Commerce Commission ex rel. Chicago Motor Coach Co., 336 Ill. 51, 167 N.E. 840, 67 A.L.R. 938 and authorities in the annotations. Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579, 1 So.2d 489, does not hold to the contrary. The second paragraph of the opinion in that case in response to the suggestion of error simply meant to convey the idea that counsel in the case had stated that principle too broadly.
As we understand, the Dixie Company contends that the finding of facts of the circuit judge should not be disturbed by this court unless unsupported by any substantial evidence. Of course, the only way to find out whether there is such support is to go to the evidence before the Public Service Commission. In other words, the circuit court decides the question and when it comes up to this court the decision here is not controlled by the opinion of the circuit court but by its own consideration of the testimony before the Commission.
Applying these principles to the case here results in the reversal of the judgment on both direct and cross-appeals.
Reversed and judgment of the Public Service Commission reinstated.
SPECIALLY CONCURRING OPINION.
The contest in this case is over the route known as Highway 51, between Jackson and Memphis. The Tri-State Company has an intrastate as well as an interstate certificate on this route, while the Dixie Lines has an interstate certificate only. The Dixie Lines has both an intrastate and an interstate certificate between Jackson and Memphis over Highways 49 E. and 49 W. between Jackson and Clarksdale, connecting there with Highway 61 to Memphis. The application here is by the Dixie Lines for an intrastate certificate over Highway 51, so that if granted, two lines would be operating intrastate as well as interstate between Jackson and Memphis over Highway 51, while only the Dixie Lines would be operating over the other route.
It is said by Dixie that it is undisputed that its busses running two a day each way between Jackson and Memphis over Highway 51 have each on an average from 10 to 12 vacant seats, and they say that it is undisputed that the busses of Tri-State on the same route are generally overcrowded, the aisles being filled with passengers standing over tiresome distances, and they say that in view of this condition it would be to the convenience of the public, as well as a saving in the transportation service, that they should be permitted to open their doors to fill up their vacant seats, thus relieving the pressure of passengers upon Tri-State.
It is equally undisputed that the overcrowding of the busses exists to the same extent on the routes of the Dixie Lines over Highways 49 and 61, and it was well within the province and discretion of the Public Service Commission to indicate to Dixie that instead of opening its doors to intrastate passengers on Highway 51 in order to fill its busses, one of its busses each way should be transferred to the other route, so that there the vacant seats will be filled, and thereby taking care of its own route, instead of seeking to interfere in taking care of Tri-State's route. And particularly so in view of the admitted fact that to open Dixie to local passengers on Highway 51 would add not less than an hour to the Dixie schedule between Jackson and Memphis.
And the Commission could well anticipate or prevision as a practical certainty that if Dixie's doors were opened there would be the same rush of local passengers to get on its busses as is the case in regard to Tri-State busses, everybody wanting to take the first bus that comes along, with the result that as many would be standing in the aisles on Dixie busses as is the case on Tri-State busses, to say nothing of the public confusion that would be caused by two local passenger bus lines on the same route, and when the complaints would come the Commission would have difficulty in determining upon which of the two competing lines to place it. The Commission, on denying Dixie's application, was acting in accord with what experience has shown to be best, namely, that so far as local traffic is concerned, to permit only one carrier on each route, and to see to it that the carrier adequately serves the public, as to which the Commission has full power. When the Commission is acting as it has acted here, within the scope of its mature and reasonable discretion, the judicial courts should not undertake to interfere or assume to direct how the state's motor carrier lines shall be operated. The law in such cases the court may pronounce and order enforcement, but the supervision of the operation of these lines is with the Commission.
What has been said is of some of the reasons which sustain the action of the Public Service Commission in denying the application for an additional local certificate, and on the assumption that the courts have the authority to review an order of the Commission denying or refusing to grant such a certificate. When a competitive certificate has been granted the order is reviewable, Dixie Greyhound Lines v. Mississippi Public Service Comm., 190 Miss. 704, 200 So. 579, 1 So.2d 489. But otherwise than under the so-called grandfather clause, is an order denying a certificate subject to judicial review? The granting of a certificate of public necessity and convenience is legislative in its nature, unless made mandatory under facts standardized by the legislature. In the absence of specific standardized facts, may the legislature impose or confer on a judicial court the authority to issue a certificate to a motor carrier prospective in its character, and if it could not do so directly, may it do so indirectly by the allowance of an appeal from an order of the Commission which has refused to grant the certificate?
This question was not raised by the parties, and has not been considered for decision by the court, the decision being placed on the merits, and this additional opinion is filed so that it may not be assumed that because the court has passed on the merits in the case it has impliedly held that the order is one which the court must review.
I concur in the opinion in this case because of the asserted fact, uncontradicted, that the Tri-State Transit Company has not been requested by the Public Service Commission to put into service additional busses sufficient to accommodate the traveling public, and that, if so requested, it will do so.
PARTIALLY CONCURRING OPINION.
I concur in the result here reached. The statement in the opinion that everybody knows "that during the war there has been and is now great overcrowding on all public carriers of passengers" and the holding that "the courts are authorized to take judicial notice without any proof of what everybody knows," are not necessary for the decision of this case and I prefer to express no opinion thereon. The overcrowding of busses of the two parties to this proceeding was conceded at the trial and supported by evidence. The overcrowding vel non of busses on highways other than the one here involved is not material hereto and taking judicial notice thereof adds nothing to the rights of the parties hereto.