93 W. Va. 292 | W. Va. | 1923
Lead Opinion
G. Z. Bunch, S. G. Saunders, E. L. Covington, L. E. White, B. E. Mitchell imd E: B. Martin, partners under the name of
Petitioners further state that at the conclusion of the hearing Commissioner . Hiner announced that the Commission would consider the matter and notify petitioners; that on the following day the White Transportation Company published in a Huntington newspaper a schedule of one-half hour service, which included the schedule of service applied for by petitioners, and began, and still is, operating its cars on such schedule; that there was no hearing upon the application of the White Transportation Company to operate ears on a one-half hour schedule.
That in response to a letter written January 6th, 1923, by J. H. Strickling, one -of counsel for petitioners, the following letter was written and sent by the Commission thru the mail to him:
*294 “THE STATE ROAD COMMISSION OF WEST VIRGINIA CHARLESTON,-W. VA.
January Eighth, 1922.
“Hon. J. H. Strickling, Huntington, West Va.
“Dear Sir:
“On Saturday the 6th inst., we advised Mr. F. B. Shannon, Attorney of this City, that we had decided to grant a permit to the Charleston & Huntington Motor Bus Company and requested him to come to see us and go over the schedule as we thought there should be some few changes made in it.
“Today we are in receipt of your very insulting letter which has been carefully gone over by the members of the Commission and we have come to the conclusion to withdraw our consent to grant this permit as we feel that a Company who would allow their Attorney to write a letter of this kind and character before knowing of what; he wrote, would no doubt violate our rules and regulations and cause continual friction.
“Yours truly,
STATE ROAD COMMISSION, (Signed) C. E. Hiner C. E. HineR
CEH :JAC ■ Commissioner.
Copy to F. B. Shannon.”
Petitioners pray for an alternative writ of mandamus against C. P. Fortney, E.' B. Stephenson and C. E. Hiner, State Road Commissioners, commanding them to- issue to the petitioners, as the Charleston-Huntington Motor Bus Company, a permit to operate a bus line consisting of. seven cars between the city of Huntington and the town of Hurricane, in accordance with schedule filed with the application of petitioners.
The respondents, C. P. Fortney, E. B. Stephenson and C.. E. Hiner, as members of the State Road Commission, in their return to the alternative, writ awarded, and insofar as here pertinent, aver that at the hearing of petitioners’ application, “There ivas submitted evidence tending to show that public' necessity required the issuance of the permit; and that the White Transportation Company was not. taking care of the
■Respondents deny, however, that no hearing was had on the application of the White Transportation Company for a schedule of one-half hour service, but aver that when the application was considered on January 2d, 1923, representatives of the petitioners were' present and offered no objection to the granting thereof, and that believing the interests of the public would be promoted thereby, the Commission granted the same. . ■
In explanation of the letter above, respondents say that it, “Was written under the impulse of the moment and that said letter did not set forth the real reason for the refusal of the Commission to grant said permit; and that C. B. Iliner’s letter to Khannon to the effect, that, the permit had been granted was merely the statement of the individual judgment of one member of tire Commission, who heard the evidence in support of the application, and was in no sense an expression of the official finding of a quorum of the members of the Commission, and could in' no wise be construed as an official finding that the permit should be granted.” To justify their action in finally refusing the application of petitioners, respondents further say that, “After the premature. expression of Commissioner Iliner’s personal views to JIi’. ¡Shannon, the matter was maturely and carefully considered in a conference with all of the members of the Commission present, at which conference it was finally decided that public necessity for the granting of said permit' did not then exist, there being insufficient traffic to support two competing lines, as was clearly evidenced by the fact that the. Ferguson line to which a permit had previously been granted, was not a success, and that a competent line was already operating and willing to give additional .service when required; and believing that the public welfare would
In so far as pertinent, we see no difference in legal effect between the petition and the return of respondents, except as to what took place izz respect to the application of the White Transportation Company to operate its cars on one-half hour seiwice. Respondents claim the application was considered and granted in the presence of representatives of petitioners, .without protest. Petitioners, on the other hand, contend they protested and that there was no formal hearing on the application. ' The contention of petitioners must be true. Their application for the very same service would certainly constitute protest to its being granted to another. But even this matter may be eliminated.
It is not a question here as to whether this Court should' by mandamus compel favorable consideration by respondents of petitioners’application. That has already been done. Respondents show, in their letters to Striclding and Shannon, attorneys for petitioners, that they have already granted the permit to petitioners. Then nothing remains but its issuance, —a mere ministerial act. 18 R. C. L. pp. 127, 128, and authorities there cited. The granting of the permit was amply justified on the evidence, adduced at the hearing, tending to prove, as shown by respondents’ return, “That public necessity required the issuance of the permit; that the White Transportation Company was not taking care of the traveling public; that at least two of its drivers were in the habit of driving on the public highways while intoxicated; and that the cars of said White Transportation Company were in maizy instances overcrowded.”
The respondents cannot now revoke that permit without cause. Under the statute, “Permits, when granted, shall be good until the first day of January next following, and may be renewed at their expiration unless for some good cause the Commission or other licensing authority shall refuse to reissue the same.” The only cause given in the statute for
The peremptory writ is therefore awarded.
Writ awarded.
Dissenting Opinion
(dissenting):
I regret to file this, my first, note of dissent. A casual reading of the statute under which these road permits are issued, discloses the reason and intent of the enactment. No one is entitled as a matter of right to such permit. They are not of the same class or kind of permits as licenses for hotels, restaurants, pool rooms, &c. A permit or license to operate on the public roads as a carrier can only be issued when the public necessity and welfare demands it. No such condition precedent applies, to the other class of licenses above referred to. Any proper person shall receive them if they desire, without reference to public necessity. The business judgment of the licensee governs in that regard. He cannot arbitrarily be refused license when he is a proper person and conforms to the requirements of the law governing other applicants. Houvouras v. City of Huntington, 90 W. Va. 245; State ex rel. Hoffman v. Town of Clendenin, decided this term., A permit or license to operate on the roads as a common carrier is quite different. The public necessity controls; and if that necessity exists and has been met and relieved, further permits to the same licensee or any other person is at an end. Full investigation is required to ascertain the public necessity, and when that is determined and the permit or license issued the recipient is placed under bond, his schedule and rates of fare are fixed, and he is required to operate under
Wliat is the result of the issuance of the writ of mandamus? The public is now adequately served by a sufficient number of conveyances running on the hour and half hour between the two points. It is immaterial in this proceeding what person or company operates them. The writ operates in presentí. By this writ additional conveyances, fourteen in number I think, wi]l be put on this road, operating on the same schedule, when no'public necessity demands them. We say by this writ that at this present time there is a public necessity and demand for these additional conveyances, so palpable and urgent that it calls for the extraordinary and harsh remedy of the writ of mandamus. Perhaps it would be wandering into the realm of speculation and fancy to say what the result may be from congested traffic, accidents, law suits, and business failures. I do not care to be a part of the efficient cause which may bring about such results. I do not believe the courts should place their judgments above that of the Commission which is in close touch with the public necessities, .and regret that I cannot join my brethren in their viewpoint.