Atl. Greyhound Corp. v. Pub. Serv. Comm'n Of West Va.

• Citation: 132 W.Va. 650
• Decision Date: 05 April 1949
• Docket Number: (No. 10079)
• Court: Supreme Court of West Virginia
• Parties: Atlantic Greyhound Corporation v. Public Service Commission of West Virginia,and Elk River Bus Company, Inc..

132 W.Va. 650

Atlantic Greyhound Corporation

v. Public Service Commission of West Virginia, and Elk River Bus Company, Inc..

(No. 10079)

Supreme Court of Appeals of West Virginia.

Submitted January 13, 1949.

Decided April 5, 1949,

1. Public Service Commission

The Public Service Commission, by rule based upon a statute which empowers it to prescribe rules of practice and procedure and the method and the manner of holding hearings, has the authority to grant, within the time and in the manner provided by such rule, a rehearing of a final order entered by the commission in a proceeding of which it has jurisdiction.

2. Appeal and Error

The statutory period of thirty days from the date of the entry of a final order of the Public Service Commission, in which to apply to this Court for review of such order, runs from the date of the entry of an order denying a rehearing of the proceeding in which the final order was entered and not from the date of the entry of such final order, when the application for the rehearing is filed in the manner and within the ten day period required by the applicable rule of the commission.

3. Appeal and Error

A final order of the Public Service Commission, based upon findings not supported by evidence, or based upon a mistake of law, will be reversed and set aside by this Court upon review.

4. Public Service Commission

"Where, under subsection (a), section 5, article 2, chapter 86, Acts of the Legislature, 1939, a certificate of convenience and necessity is granted a common carrier, to operate over a designated route or routes, regular or irregular, no additional certificate may be granted covering such route or routes, unless the service furnished under the first certificate is found, by the Public Service Commission, to be inadequate or insufficient, and the holder of such certificate first given an opportunity to remedy such service within a reasonable time after such finding." Point 2, Syllabus, McKee v. Public Service Commission, 124 W. Va. 10.

5. Appeal and Error

The denial by the Public Service Commission of an application, filed in the manner and within the time provided by its rule, to rehear a final order of the commission based upon findings not supported by evidence or based upon a mistake of law, is error which requires the reversal of such order upon its review by this Court.

Appeal from Public Service Commission.

Proceeding before Public Service Commission of West Virginia upon the application of Elk River Bus Company, Inc., for a certificate of convenience and necessity to operate as a common carrier of passengers over specified route. The application was granted subject to restrictions and from an order denying a rehearing. Atlantic Greyhound Corporation appeals.

Reversed and remanded.

Lovins and Kenna, Judges, dissenting.

A. Bliss McCrum, Mohler, Peters & Snyder, Charles G. Peters, Jackson, Kelly, Morrison & Moxley, Robert G. Kelly, for petitioner.

Goad & Goad, Sidney E. Goad, E. B. Pennybacker, for respondents.

Haymond, President:

By its petition, filed in this Court on May 4, 1948, Atlantic Greyhound Corporation seeks review under the provisions of Section 1, Article 8, Chapter 50, Acts of the Legislature, 1937, Regular Session, of a final order of the Public Service Commission entered March 24, 1948, in a proceeding in which the applicant, Elk River Bus Company, Inc., by the foregoing order, was granted a certificate of convenience and necessity to operate as a common carrier of passengers between Charleston and Clendenin over U. S. Route 119 and certain secondary roads which lead to or connect with that main highway. The petitioner, Atlantic Greyhound Corporation, as a certified carrier of passengers over U. S. Route 119, which is located on the west side of Elk River and passes through Clendenin, between Charleston and Clarksburg, and other common carriers claiming to be affected, appeared before the commission and protested the application. This Court, by order entered May 17, 1948, fixed June 1, 1948, as the day for hearing upon the petition, and on June 14, 1948, entered an order suspending the order of the commission. By agreement of the petitioner and the defendants the Public Service Commission and Elk River Bus Company, Inc., and with the consent of this Court, final hearing upon the petition was continued until January 12, 1949, at which time this proceeding was finally heard and submitted for decision.

The application of Elk River Bus Company, Inc., dated February 14, 1946, which initiated the proceeding before the commission, was filed March 12, 1946, and the hearing upon the application was set for March 27, 1946. Atlantic Greyhound Corporation and other carriers affected appeared and opposed the application. The evidence before the commission, consisting of the testimony of numerous witnesses, maps and other documents, was concluded on April 26, 1946. Briefs of counsel were filed on or before June 7, 1946, and the proceeding submitted for decision on or about that date. The commission filed its written report and entered an order on March 24, 1948, by which it found that the service rendered by Atlantic Greyhound Corporation between Charleston and Clendenin was not adequate and efficient and granted, with certain restrictions, the nature of which is hereinafter set forth and discussed, a certificate to Elk River Bus Company, Inc., to operate over U. S. Route 119 between Charleston and Clendenin and over the secondary roads mentioned in the application, subject to acceptance of the certificate by the applicant on or before April 6, 1948. The applicant, on April 6, 1948, accepted the certificate and requested permission to begin its operations within ninety days from that date. On April 2, 1948, the Atlantic Greyhound Corporation filed its verified petition in which it requested a rehearing of the case and that the commission vacate its report and order of March 24, 1948. On April 20, 1948, by order entered on that day, the commission denied the prayer of the petition and refused to grant a rehearing.

Clendenin is located about 22.1 miles northeast of Charleston on U. S. Route 119. At the time of the filing of the application by Elk River Bus Company, Inc., Atlantic Greyhound Corporation was the holder of a certificate of convenience as a common carrier of passengers between Charleston and Clarksburg, and had been operating between those cities over U. S. Route 119 from Charleston to Weston and over U. S. Route 19 from Weston to Clarksburg for a period of approximately twenty years. In conjunction with its lessee, West Virginia Transportation Company, also a certified operator, it was furnishing daily eleven trips from Charleston to Clendenin and thirteen trips from Clendenin to Charleston, using two, and sometimes three, busses on its scheduled trips. Under its application Elk River Bus Company, Inc., sought authority to operate, without restriction, eighteen round trips daily and nine round trips on Sunday over U. S. Route 119 between Charleston and Clendenin; four round trips daily between Charleston and a point on Jordan Creek Road, a distance of 20.8 miles, of which 18.8 miles are over U. S. Route 119; five round trips between Charleston and Five Mile Fork, a point on Coopers Creek Road, a distance of 13.2 miles, of which 8.6 miles are over U. S. Route 119; four round trips between Charleston and a point on Mink Shoals Hill Road, a distance of 5.4 miles, of which 4.8 miles are over U. S. Route 119; and four round trips between Charleston and a point on Newhouse Branch Road, a distance of 4.5 miles, of which 3.5 miles are over U. S. Route 119. These side roads connect with U. S. Route 119 and respectively extend westward from it for these distances: Newhouse Branch Road, one mile; Mink Shoals Hill Road, six tenths of a mile; Coopers Creek Road, four and six tenths miles and two and two tenths miles on one of its branches; and Jordan Creek Road, two miles. It also sought authority to operate a distance of two and five tenths miles over a side road between Clendenin and Falling Rock known as Falling Rock Road which intersects with U. S. Route 119 on its east side at Clendenin and extends south on the east side of Elk River. The villages on U. S. Route 119 between Charleston and Clendenin, in their order from Charleston, are: Knollwood, Mink Shoals, Elk Hills, Crede, South Big Chimney, North Big Chimney, Little Sandy, Elkview, Blue Creek, Walgrove and Falling Rock. About midway between South Big Chimney and North Big Chimney, Kanawha County Secondary Route 41, known as Coopers Creek Road, intersects with U. S. Route 119 on its west side. The distances on U. S. Route 119 of the various sections between the Charleston terminal of the applicant and Clendenin over which it seeks authority to operate are: Charleston terminal to Newhouse Branch Road, 3.5 miles; Newhouse Branch Road to Mink Shoals Hill Road, 1.3 miles; Mink Shoals Hill Road to Coopers Creek Road, 3.8 miles; Coopers Creek Road to Jordan Creek Road, 10.2 miles; Jordan Creek Road to Clendenin, 3.3 miles, or a total distance of 22.1 miles.

Sixty eight witnesses were produced in behalf of the applicant and thirty three witnesses were produced in behalf of the protestants, of which number four were bus drivers and three were officials of Atlantic Greyhound Corporation. The witnesses testified with respect to the number of houses located along the various side roads sought to be served, the traffic conditions in the area and the character of the service rendered by the Atlantic Greyhound Corporation between Charleston and Clendenin prior to and during April, 1946. The testimony of witnesses in behalf of the applicant was that there were 276 houses in sight of the side roads over which it desires to operate. The testimony of witnesses in behalf of Atlantic Greyhound Corporation was that the total number of houses on these roads was only 182. Several witnesses testified that the busses operated by ...