Arlington Yellow Cab Co. v. Transportation, Inc.

• Decision Date: 09 September 1966
• Citation: 149 S.E.2d 877,207 Va. 313
• Court: Virginia Supreme Court
• Parties: , 65 P.U.R.3d 380 ARLINGTON YELLOW CAB COMPANY, Inc. v. TRANSPORTATION, INC., and Bert W. Johnson, County Manager of Arlington County.

Page 877

149 S.E.2d 877

207 Va. 313, 65 P.U.R.3d 380

ARLINGTON YELLOW CAB COMPANY, Inc. v. TRANSPORTATION, INC., and Bert W. Johnson, County Manager of Arlington County.

Supreme Court of Appeals of Virginia.

Sept. 9, 1966.

L. Lee Bean, Arlington (Bean & Sizemore, Arlington, on brief), for plaintiff in error.

John L. Melnick, Arlington (William J. Hassan, Commonwealth's Atty., on brief), for defendants in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

EGGLESTON, Chief Justice.

Arlington Yellow Cab Company, Inc., filed in the court below a petition against Transportation, Inc., and Bert W. Johnson, County Manager of Arlington county, praying for a judgment declaring illegal and invalid a certificate of convenience and necessity which the county manager had issued on April 22, 1964 to Transportation, Inc., for the operation of thirty taxicabs in Arlington county, and for an injunction restraining Transportation from operating under the certificate. The defendants filed separate demurrers which were sustained and the petition dismissed. We granted the complainant a writ of error. The sole issue on appeal is whether the petition states a cause of action and should not have been dismissed on demurrer.

The pertinent allegations of the petition may be summarized thus:

(1) Yellow Cab has been and presently is engaged in the operation of a taxicab business with seventy-five cabs in operation, in Arlington county, under a certificate of public convenience and necessity heretofore issued by the county manager.

(2) On or about April 22, 1964 the county manager, acting pursuant to § 25--6.4 of the Arlington County Code, issued a certificate of public convenience and necessity to Transportation to operate thirty taxicabs in Arlington county.

(3) The action of the county manager in issuing the certificate to Transportation 'was premature' in that § 25--6.6 of the County Code requires him to make a survey and acquire certain information 'on July 1 of each year' before determining whether the public convenience and necessity require the number of authorized vehicles to be increased or decreased, and that this was not done.

(4) The action of the county manager 'was unconstitutional as to' the complainant in that although its business would be 'adversely affected by the issuance of said certificate' to Transportation, the complainant 'was not afforded a full hearing before the county manager' as required by the due process clauses of the State and Federal Constitutions.

(5) The action of the county manager 'in issuing said certificate was arbitrary, capricious and unreasonable in that there was insufficient evidence on which' he 'could find, pursuant to Section 25--6.4 of said Taxicab Ordinance, that the public convenience and necessity required the operation of the thirty (30) taxicabs designated in the application.'

In its memorandum opinion sustaining the demurrers, the lower court pointed out that in acting on the application of Transportation for the certificate the county manager was not required to follow the provisions of § 25--6.6, with which the petition alleged he had not complied, because that section related to the 'amendment of existing certificates;' that since Transportation had applied for a 'new certificate' the county manager was required to follow § 25--6.4; and that inasmuch as there was no allegation that he had failed to follow the provisions of the latter section, the petition failed to state a cause of action and should be dismissed. We agree with the lower court's interpretation and application as to these sections of the County Code.

Chapter 25 of the County Code (§ 25--1 ff.), which is before us as an original exhibit, provides for the regulation and control of the operation of taxicabs for hire in Arlington county.

Section 25--6.1 requires the issuance of a certificate of public convenience and necessity by the county manager in order that one may engage in the taxicab business.

Section 25--6.2 provides for the filing of an application for such certificate and specifies what information must be detailed therein.

Section 25--6.4 provides for the determination by the county manager of the public convenience and necessity for such certificates and the issuance of them by him. The material portions of this section are printed in the margin. ¹ Section 25--6.6, which provides for the amendment to a certificate heretofore granted, is likewise printed in the margin. ²

It is clear, we think, that § 25--6.4 provides for the determination by the county manager of the public convenience and necessity for the issuance of a new certificate. It provides that he shall determine whether public convenience and necessity require the operation of taxicabs designated in the application and details the factors which he shall consider in making this determination.

Subsection (d) provides that to assist the county manager in making a finding as to whether public convenience and necessity require the operation of taxicabs for which an application has been filed, he shall give to each present certificate holder 'an opportunity to express an opinion about the application.' The record here shows that before acting on the application of Transportation the county manager gave Yellow Cab such an opportunity and it filed a written 'opinion' pointing out why the application should be denied.

Subsection (d) further provides that upon 'a showing of demand' by the holders of certificates then in effect 'or the general public,' the county manager may request the Public Utilities Commission of the county to hold a public hearing on the application. There is no allegation in the petition that Yellow Cab made a demand for such hearing. Evidently it rested its case on its written 'opinion' protesting the granting of the certificate.

It is equally clear that § 25--6.6 applies to amendments to certificates heretofore granted. Subsection (a) provides that the county manager 'shall have the authority to grant additional vehicle authorizations to certificate-holders based on his determination of the public convenience and necessity.' Subsection (b) gives the county manager the authority to rescind vehicle authorizations which have been granted.

In order that the county manager may act intelligently on proposed amendments, he is required by subsection (c) 'on July 1 of each year' to inquire into the economic condition of the industry, the number of vehicles by which the industry shall be increased or decreased, and whether there should be any increases or decreases.

Subsection (f) provides that the county manager shall allocate any or all of the 'additions or reductions' in the number of authorized vehicles based on his determination of certain stated factors.

The allegation in the complaint that the action of the county manager was premature and that he had no authority to act on the application of Transportation until after July 1, is predicated upon the mistaken premise that the consideration of this application was controlled by the provisions of § 25--6.6. But that premise is unsound because, as has been said, in considering this application, which was for a new certificate, the county manager was required to proceed under § 25--6.4, and that section contains no such provision postponing his action until after he had made the required survey on July 1.

It is next said that the action of the county manager was 'unconstitutional' as to the complainant, for the reason that although its business would be adversely affected by the issuance of a new certificate the complainant was not afforded a full hearing before the county manager. Assuming, but not deciding, that the complainant was constitutionally entitled to a hearing on Transportation's application, subsection (d) of § 25--6.4...