Dixie Greyhound Lines, Inc. v. Mississippi Railroad Commission

Decision Date30 September 1935
Docket Number31814 I/2,31814
Citation163 So. 443,174 Miss. 1
CourtMississippi Supreme Court
PartiesDIXIE GREYHOUND LINES, INC., v. MISSISSIPPI RAILROAD COMMISSION

Division B

APPEAL from circuit court of Hinds county HON. JULIAN P. ALEXANDER Judge.

Application by the Dixie Greyhound Lines, Incorporated, to the Mississippi Railroad Commission for recognition of claimed franchise to operate bus on certain highway which was opposed by the Motor Transportation Company. The Railroad Commission entered an order denying the application and the applicant appealed to the circuit court by certiorari and under section 7125, Code 1930. From a judgment of the circuit court dismissing the appeal under section 7125, and affirming the order of the commission in the certiorari case, the Dixie Greyhound Lines, Incorporated, appeals. Judgment of the circuit court affirmed.

Affirmed.

Chandler, Shepherd, Owen & Heiskell, of Memphis, and Watkins & Eager, of Jackson, for appellant.

The case is reviewable on appeal under section 7125, Mississippi Code.

Sec. 156, Miss. State Constitution; Knox, Atty.-Gen. v. Dantzler Lbr. Co., 114 So. 873, 148 Miss. 834; Y. & M. V. R. R. Co. v. Miss. R. R. Comm., 148 So. 430, 166 Miss. 359; Western Union Tel. Co. v. Miss. R. R. Co., 74 Miss. 80, 21 So. 15.

The franchise of appellant was property of which it could only be deprived after complaint upon part of the State and a full hearing.

Teche Lines, Inc., v. Bd. of Supervisors, 142 So. 24, 165 Miss. 594; Tonkel v. Riteman, 163 Miss. 216, 141 So. 344.

The appellant became the owner of a piece of personal property, consisting of a franchise right to operate motor transportation vehicles one trip each way per day between Vicksburg and Jackson. There was no cancellation of the right. With the right in full force and effect, the Mississippi Railroad Commission, at the instance of the Motor Transportation Company, deprived the appellant of the benefit of its franchise by refusing to permit it to resume its schedule. That such construction violates the Fourteenth Amendment to the Constitution of the United States, as well as the Bill of Rights of the state of Mississippi, is perfectly clear.

Frost v. Corporation Commission, 278 U.S. 515, 73 L.Ed. 483; Dorr v. Levee Comm'rs, 28 So. 938.

The Mississippi Railroad Commission without authority to destroy or revoke franchise of appellant by refusing to assign to it a schedule.

Sec. 7119, Miss. 1930 Code.

As a matter of fact, Mississippi Railroad Commission committed error, apparent upon face of the record, in denying to appellant its franchise right of resuming its schedule over highway 80, between Vicksburg and Jackson, and in holding that appellant was in same position as if applying for franchise ab initio, and the circuit court of Hinds county committed error in affirming error of the Mississippi Railroad Commission.

Orders of Mississippi Railroad Commission are reviewable by certiorari.

Secs. 72, 73, Miss. 1930 Code; G. & S. I. R. R. Co. v. Adams, 85 Miss. 772; Power v. Robertson, 130 Miss. 188, 93 So. 769; Ferguson v. Seward, 146 Miss. 613.

Courts in granting writs of certiorari review only errors of law appearing upon face of the record.

Y. & M. V. R. R. Co. v. Miss. R. R. Comm., 152 So. 649; Cumberland T. & T. Co. v. State, 135 Miss. 835, 100 So. 378; Federal Credit Co. v. Zepernick Groc. Co., 153 Miss. 494.

Certiorari proper method of testing legality of assessment against railroad company.

I. C. R. R. v. Miller, 141 Miss. 223, 106 So. 636.

The error of law complained of appears on face of record eliminating the stenographer's notes.

Briscoe v. Buzbee, 143 So. 407, 163 Miss. 574.

On the question as to whether or not the Railroad Commission in the instant case was a quasi-judicial tribunal see:

I. C. R. R. Co. v. Miss. R. R. Commission, 109 So. 868, 143 Miss. 805; Cumberland Tel. & Tel. Co. v. State ex rel. Potter, Attorney-General, 135 Miss. 835, 100 So. 378; Mabry v. School Board, 162 Miss. 632; 2 Bouv. Law Dict., p. 1918; Union Pac. R. Co. v. United States, 99 U.S. 761, 25 L.Ed. 496; Merrill v. Sherburne, 1 N.H. 204, 8 Am. Dec. 52, 31 Am. Law Reg. (N.S.) 438.

Harry M. Bryan, of Jackson, and E. R. Holmes, Jr., Assistant Attorney-General, for appellee.

The direct appeal to the circuit court attempted to be prosecuted by the Dixie Greyhound Lines was an ingenious attempt to bring before the circuit court the record of the evidence adduced before the Railroad Commission, counsel having in mind the decisions of this court in Yazoo & M. V. R. R. Co. v. Mississippi Railroad Commission, 152 So. 649; Gulf & S. I. R. R. Co. v. Mississippi Railroad Commission, 152 So. 650; Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173, 153 Miss. 494, 121 So. 114, wherein it was held that the statute permitting the circuit court on certaiorari to review the judgments of inferior tribunals, did not authorize an examination of the transcript of the evidence.

It is patent that the statute sought to be used for the purpose here is section 7125, Code of 1930.

An appeal is not a matter of right, and lies only when authorized by law.

Bridges v. Clay County, 57 Miss. 252; State ex rel. Brown v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124; Miller v. Kieth, 26 Miss. 166; Shapleigh Hardware Co. v. Brumfield, 130 So. 98, 159 Miss. 175; Hurdle v. State ex rel., 95 So. 514, 131 Miss. 517.

Section 7125 does not remotely prescribe any definite procedure at all. Under what reasoning can counsel for appellant here claim that the general statutes on appeal apply? There is no statute that can be pointed out, except sections 72 and 73 of the Code of 1930 which set up procedural privileges (and that is exactly what they are--privileges) by way of certiorari.

The learned circuit court below agreed with our contention that there is no statutory method of appealing directly to it from orders of the Railroad Commission; that "the appeal should be undertaken by certiorari, the proceedings by appeal will, for that reason, be dismissed."

No error apparent upon the face of the record and proceedings can possibly be shown for the reason that, as held in the case of Cumberland T. & T. Co. v. State ex rel. Potter, Attorney-General, 100 So. 378, 135 Miss. 835, no appeal lies from the order of the commission while exercising a legislative function.

We desire to cite two cases decided by this honorable court, subsequent to that of Cumberland Telephone and Telegraph Co. v. State, 100 So. 379, 135 Miss. 835, and which follow the rule therein discussed and announced as to the power of the court to review certain orders of the Mississippi Railroad Commission.

I. C. R. R. Co. v. Miss. Railroad Commission, 109 So. 868, 143 Miss. 805; Mabray v. School Board of Carroll County, 137 So. 105, 162 Miss. 632.

The transcript of the evidence taken before the commission cannot here be considered and forms no part of the record.

Secs. 72, 73, Code of 1930; Yazoo & M. V. R. R. Co. v. Mississippi Railroad Commission, 152 So. 649; Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 494, 120 So. 173, 121 So. 114.

There is no error of law apparent on the face of the record and proceedings.

It must be borne in mind that the commission in the case at bar did not pass on whether or not the Dixie Greyhound Lines had lost a franchise right or rights; the petition praying authority to operate a certain fixed schedule, for certain fixed rates, was denied. So far as any claimed right to the franchise is concerned, the commission entered no judgment; its order went to the question of whether or not public convenience and necessity required the operation by petitioners of schedules at rates sought to be charged. It was purely legislative, prospective in its application.

All franchises when they are originally granted to public utilities are inherently limited by and conditioned upon the right of the sovereign, under an exercise of its police power, to control the manner of their exercise. This is common learning.

The chapter on Supervision of Common Carriers (chapter 170, Code of 1930), indicates unquestionably that the matters made the basis of appellant's original petition herein were by the legislature intended to be dealt with by the commission in an administrative or legislative capacity. Acting within its jurisdiction the orders of the commission under its granted powers are the equivalent of direct acts of the legislature.

Argued orally by W. H. Watkins, Sr., for appellant, and by Harry M. Bryan, for appellee.

OPINION

Anderson, J.

Appellant Dixie Greyhound Lines, Inc., made application to the state Railroad Commission to recognize its claimed franchise right to operate on U.S. highway No. 80, between Jackson and Vicksburg, one round-trip passenger bus schedule per day. The Motor Transportation Company, an interested corporation, was given notice of the application and appeared and resisted the order sought by the Dixie...

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    ...in this sort of a case, insofar as we have been able to ascertain, since the decision of the case of Dixie Greyhound Lines, Inc. v. Mississippi Railroad Commission, 174 Miss. 1, 163 So. 443 decided in 1935, where there was both an appeal by certiorari and a direct appeal, and certainly not ......

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