167 S.W.2d 636 | Ark. | 1943
Lead Opinion
The question is, Did the court err in sustaining corporation commission's finding that L. N. Gray1 should be granted a certificate of convenience and necessity authorizing him to operate a bus line between Fordyce and Little Rock?2
Gray's petition was filed April 18, 1940. He at that time was authorized to operate between El Dorado and *63 Fordyce over highway 167. Highway seven (between El Dorado and Camden) and highway seventy-nine (between Camden and Thornton) were used by Missouri Pacific Transportation Company. On them are Norphlet, Smackover, Camden, Eagle Mills, and Bearden. Highways 167 and 79 join at Thornton. Between Thornton and El Dorado (by highway 167) are Hampton and Calion, the former having a population of 686, and the latter 712, according to the 1940 federal census.
It will be observed that the only route used by Gray and the transportation company prior to action of the commission in extending Gray's rights November 21, 1940, was that part of highway 167 between Thornton and Fordyce, as to which Gray was not allowed to accept passengers.
The commission's finding was that points between Little Rock and Fordyce did not require additional service; nor was there a requirement for greater facilities between Fordyce and Little Rock. The petitioner, however, was authorized ". . . to serve the towns of Calion, Hampton, and Thornton, to Little Rock, and from Little Rock is permitted to serve Thornton, Hampton, and Calion to El Dorado and intermediate points between Fordyce and El Dorado, provided service between Thornton and Fordyce must be from Little Rock and not from Fordyce. . . . [He] is not permitted to render service from Fordyce to Little Rock, nor from Little Rock to Fordyce, nor to or from intermediate points between Little Rock and Fordyce. . . ."
We think the commission correctly determined that the populated area on highway 167 south of Fordyce was entitled to better service, and that travelers taking passage on Gray's buses should not be required unnecessarily to spend time at Fordyce waiting for Little Rock connections; nor should passengers from points north of Fordyce en route to the area in question who take passage on appellant's buses be unreasonably inconvenienced.
It was shown, however, that Gray operated but one conveyance: a 1939-model International chassis with *64 "home-made" body. With this he made two daily round trips between El Dorado and Fordyce.
The commission's finding that appellant's service from Little Rock to El Dorado was satisfactory is not questioned. In addition to the bus service maintained by Gray and by appellant, train schedules afforded convenient means of travel to and from some of the points to which reference has been made.
Buses operating on the three highways did not connect at Fordyce. Appellant insists it is anxious to make adjustments in order to accommodate passengers originating on Gray's route, but thinks there was want of cooperation. It is not uncommon for competitors to justify their own conduct and to believe that want of reciprocity is chargeable to the adverse party. Whatever may be true here in this respect, a preponderance of testimony shows there was ample seating room on the several buses and they were operated with sufficient frequency to meet standards. The thing wanting was connections. This deficiency could be corrected by the commission. Pope's Digest, 2026. The case is similar to Missouri Pacific v. Williams,
Appellant's argument that the certificate issued to Gray creates competition is not controlling. The paramount consideration is public convenience and necessity. A service corporation, or individuals operating in a particular field in response to authority to act as common carrier, may be required to do many things they or it would prefer to avoid. On the other hand, public convenience is best served by operators who are financially responsible, and who because of such responsibility are able to utilize modern equipment in an efficient manner.
Undisputed evidence is that appellant has never profited by reason of the Little Rock-to-El Dorado service. But, as we have said, this is not the criterion. Rather, it is a component the commission must consider in ascertaining what the public is entitled to in a particular case. *65
Since readjustment of schedules will bring relief south of Fordyce, and this may be accomplished without infringing on a route appellant has been authorized to serve, it was error to affirm the commission's order.
The judgment is reversed. The cause is remanded to circuit court with directions to cancel the commission's order of November 21, 1940.
If because of changed conditions and the inability of appellant to render sufficient service over the highways covered by its certificate additional facilities are required, the commission has continuing authority to hear evidence and determine the question.
Mr. Justice Carter disqualified and did not participate in the consideration or determination of this case.
Dissenting Opinion
The Arkansas Corporation Commission, after protracted hearings, one of which was held in the territory affected, found that public necessity and convenience required the additional service which the appellee, Gray, offered and was financially able to provide. It was established by the undisputed testimony that, under conditions existing when the appellee made application for the permit under review here, citizens of Hampton and other important towns in Calhoun county were unable to make the trip to Little Rock and return without spending the night away from home, and likewise the round trip from Little Rock to and from any of those communities required two days. The circuit court reviewed this testimony and upheld the finding of the Corporation Commission.
While, under the provisions of our statute, the Supreme Court tries a case of this kind de novo, there is nothing in the statute that prevents this court from according to the finding of the circuit court and to that of the Corporation Commission the presumption of correctness to which the decision of any duly constituted fact finding tribunal is entitled. Under our law and practice, all cases appealed from chancery court are tried de novo in the Supreme Court, but the rule universally adhered to is that the finding of the chancellor *66 on a question of fact will not be disturbed on appeal unless it is against the clear weight of the testimony.
It is generally held that the finding of fact made by a body such as the Corporation Commission should not be set aside unless such finding is against the weight of the testimony. The rule is thus stated in 9 Am.Jur. 494: "There are manifestly practical reasons for giving peculiar weight to the finding of a commission, for such a body from the nature of its organization and the duties imposed upon it by statute is peculiarly competent to pass upon questions of fact of the character arising in the determination of questions relating to the reasonableness of rates and regulations. In fact, the commission's findings are in case of conflict of testimony entitled to a probative force upon a consideration of the case on appeal to the courts, for the commission, in addition to knowledge of conditions of environment and of transportation relations, has had the advantage of the presence of the witnesses before it." In 51 C.J., p. 77, it is said: "The question is not whether there is a scintilla of evidence to support the order, but whether it is reasonably supported by all the evidence; but the order should not be disturbed unless so manifestly against the weight of the evidence or so clearly unsupported by it as to show mistake or wilful disregard of duty." This principle was recognized and upheld by the Supreme Court of the United States in the following cases: East Tennessee, Virginia Georgia Railway Company, et al., v. Interstate Commerce Commission,
For these reasons, I must dissent from the opinion of the majority in this case.
