City Transp. Co., Inc. v. Pharr

• Decision Date: 28 February 1948
• Parties: CITY TRANSP. CO., Inc. v. PHARR et al.
• Court: Tennessee Supreme Court

209 S.W.2d 15

186 Tenn. 217

CITY TRANSP. CO., Inc. v. PHARR et al.

Supreme Court of Tennessee.

February 28, 1948

Appeal from Chancery Court, Davidson County; Wm. J. Wade Chancellor.

Certiorari and supersedeas proceeding by the City Transportation Company, Inc., to review the action of the State Railroad & Public Utilities Commission, Samuel S. Pharr, chairman and others, granting the Tri-State Coach Corporation a certificate of convenience and necessity to operate motor buses along certain route, and for judgment setting aside such order. From a decree setting aside the order, the Tri-State Coach Corporation appeals.

Decree affirmed.

NEIL Chief Justice.

On October 22, 1946, the State Railroad and Public Utilities Commission granted the Tri-State Coach Corporation a certificate of convenience and necessity to operate motor busses from a point approximately two and one half miles from the city limits of Kingsport to the corporate limits of said city, and thence over certain designated streets, with closed doors, to the Union Bus Terminal, and from there to the plant of the Tennessee-Eastman Corporation, which is partially within the corporate limits of Kingsport.

The City Transportation Company, Inc., entered a protest and later filed a petition in the chancery court at Nashville for certiorari and supersedeas seeking a review of the action of the Commission, and a judgment setting aside the said order.

The three members of the Commission were made parties defendant in their official capacity. Answers were filed by all defendants, and the transcript of the proceedings before the Utilities Commission was duly certified to the chancery court. Subsequently, Samuel S Pharr, Chairman, was his associates moved the trial court to strike their answer to the petition, which was done, to which action of the court the City Transportation Company excepted.

The chancellor heard the cause on the certified record, oral argument and briefs of counsel. He sustained the petition and set aside the order of the Commission. The Tri-State Coach Corporation excepted to the chancellor's decree and was granted an appeal to this Court. We are asked to consider the following assignments of error:

'I. The Court erred in holding Chapter 52 of the Public Acts of 1943 constitutional.

'II. The Court erred in holding that Chapter 52 vested in the City of Kingsport-exclusive jurisdiction to grant franchises or certificates of convenience and necessity for motor carriers to operate in the City and its environs.

'III. The Court erred in holding that Chapter 52 repealed by implication the motor carrier act.

'IV. The Court erred in holding that the Commission exceeded its authority in granting the certificate to Tri-State Coach Corporation.

'V. The Court erred in declaring the certificate void in its entirety rather than remanding the case to the Commission for proper action.'

This suit involves primarily the jurisdiction of the Railroad and Public Utilities Commission and the City of Kingsport in the matter of regulating motor carriers of passengers operating within a particular area. The City of Kingsport is not made a party to the present action and hence is not asserting any authority. Neither is the Utilities Commission insisting upon the validity of its order since it did not appeal from the chancellor's decree. The contest is therefore between the two public carriers.

The Tri-State Coach Corporation insists upon the validity of its certificate of convenience and necessity which it holds from the Commission. The City Transportation Company holds a franchise from the City of Kingsport to operate in the city and its 'environments.' The former is an interstate carrier, while the latter is local or intrastate and operates from the Virginia state line (which is two and one half miles beyond the city limits of Kingsport), and upon the city streets generally.

Prior to the passage of Chapter 52 of the Public Acts of 1943, the Railroad and Public Utilities Commission was clothed with full authority to regulate common carriers. By the enactment of said statute the various municipalities in the State were given 'general * * * jurisdiction and control over street railway companies, their property, property rights, facilities and franchises,' and 'such municipalities shall have the same powers with respect to street railways operating within their limits that are now granted to the Railroad and Public Utilities Commission of the State of Tennessee,' except as to the method of assessing property for ad valorem taxes. The matter of taxation was thus left to the State Utilities Commission.

The Act defines "street railway companies" to include 'gasoline or electric or other self-propelled coaches for transportation of passengers within a municipality and in its environs and the regulation herein provided for shall be exercised both within the municipal limits and outside thereof within a radius of seven miles from the corporate limits into the county.'

The City Transportation Company, which claims to be under the jurisdiction of the City of Kingsport by virtue of the above statute, operates a transportation system covering the entire area from the Tennessee-Virginia line all the way into Kingsport, making 74 round trips daily over Highway No. 23. The certificate issued by the Commission to the Tri-State Coach Corporation authorizes it to operate busses over the same route, going through the city to its Bus Terminal and thence to a point one mile beyond the city limits to the Tennessee-Eastman Corporation. It designates routes over certain city streets, but provides for 'closed doors within the City of Kingsport.'

The several assignments of error present two important questions: (1) The constitutionality of Chapter 52, Public Acts of 1943, and (2) that if held valid, the authority thus conferred upon municipalities is concurrent with that of the Commission.

The contention is made by appellant that the Act in question is an attempt to confer governmental power upon cities beyond their geographical limits and for this reason is invalid. In support of this assignment counsel cite the cases of Gulf Refining Co. v. City of Knoxville, 136 Tenn. 253, 188 S.W. 798, and Malone v. Williams, 118 Tenn. 390, 103 S.W. 798, 805, 121 Am. St. Rep. 1002. These cases are not controlling in the present controversy.

In the Gulf Refining Co. case the City of Knoxville claimed the right to levy a privilege tax under the General Revenue Act upon an oil depot outside the corporate limits of Knoxville. It was held the statute conferred no such extraterritorial authority.

In Malone v. Williams the Legislature undertook to confer extraordinary powers upon agents of the City of Memphis such as to abate nuisances upon public and private property in a summary manner and at the cost of the owner or occupant of the premises. Other drastic provisions of the Act, which purported to amend the city charter, conferred 'unlimited and irresponsible' authority over property beyond the city limits for a distance of ten miles. It was held 'such provisions cannot be upheld in a free country. No man is wise enough, or good enough, to be vested with arbitrary power over the property of his fellow citizens.'

While the jurisdiction of municipalities, as a general rule, is confined to their own limits and internal affairs, yet exceptions have been made in many instances where public necessity required the city to enforce its police powers beyond geographical limits. Chicago Packing & Provision Co. v. Chicago, 88 Ill. 221, 30 Am.Rep. 545; People v. Raims, 20 Colo. 489, 39 P. 341; O'Brien v. Amerman, 112 Tex. 254, 247 S.W. 270. Many other authorities could be cited to the same effect.

The statute, Chapter 52, supra, which is assailed in the instant case, deals with only one question, that of the...