Dunlap v. Dixie Greyhound Lines, Inc.

• Decision Date: 04 April 1942
• Citation: 160 S.W.2d 413,178 Tenn. 532
• Parties: DUNLAP et al. v. DIXIE GREYHOUND LINES, Inc., et al.
• Court: Tennessee Supreme Court

160 S.W.2d 413

178 Tenn. 532

DUNLAP et al. v. DIXIE GREYHOUND LINES, Inc., et al.

Supreme Court of Tennessee.

April 4, 1942

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

Certiorari proceeding by Dixie Greyhound Lines, Incorporated, and W. H McNeely, doing business as Shorty's Bus Line, against Porter Dunlap, chairman, Leon Jourolmon, and W. H. Hudson constituting the Railroad and Public Utilities Commission of the State of Tennessee, and the Tri-State Transit Company of Louisiana, Incorporated, to have an order of the commission granting a certificate of convenience and necessity to the Tri-State Transit Company of Louisiana, Incorporated, held void on ground that it was not supported by material evidence. From a decree holding the order void, the commission and the Tri-State Transit Company of Louisiana Incorporated, appeal.

Decree reversed, and commission's order affirmed.

Lon P. MacFarland, of Lebanon, Thos. H. Peebles, Jr., of Columbia, Leon Jourolmon, Jr., of Knoxville, Albert Williams and Joe Brown Cummings, both of Nashville, and W. A. Roberts, of Washington, D. C., for appellants.

Charles C. Trabue, of Nashville, and A. L. Heiskell, of Memphis, for appellee.

DeHAVEN Justice.

Upon application in due form, the Railroad and Public Utilities Commission of Tennessee granted to the Tri-State Transit Company of Louisiana, a motor bus carrier, a certificate of convenience and necessity authorizing it to extend its route from Jackson, Tennessee, via Bolivar, to Memphis, Tennessee. The application was protested by Dixie Greyhound Lines, Inc., and W. H. McNeely, doing business as Shorty's Bus Line. On certiorari granted by the Chancery Court of Davidson County, the chancellor held the order of the Commission granting the certificate aforesaid void because not supported by material evidence. The Tri-State Transit Company has appealed to this court and assigned errors.

The Commission found in its order that Dixie Greyhound Lines, Inc., operates between Memphis, Tennessee, and Jackson, Tennessee, over State Highway No. 1, U.S. 70, and between Memphis and Bolivar, Tennessee, over State Highway No. 15, U.S. 64, by virtue of certificate of convenience and necessity issued by the Commission; that W. H. McNeely, doing business as Shorty's Bus Line, operates between Bolivar and Jackson on State Highways Nos. 18 and 5 by virtue of a certificate of convenience and necessity issued by the Commission and that by interchange at Bolivar "over exactly the same route as set out in the instant application. However, the real purpose of the instant application is to open up a gap in the operations of the applicant in connection with through service between its extreme termini and enable it to render a faster and more efficient service and this can be done by placing closed door restrictions on the route applied for without offering serious competition to the present carriers who are protesting the application." The Commission further found as follows:

"The record in this cause shows that the applicant is the operator of extensive interstate passenger lines south of Memphis connecting in Memphis as a southern gateway. This gateway is a metropolitan center with a population of 350,000, which requires adequate transportation service to all parts of the country. The applicant is likewise the owner of operating rights from Jackson northwards into and across Kentucky and to St. Louis, Missouri, and other points. Jackson and numerous other small cities in upper Western Tennessee likewise have substantial populations with an existing and growing need for more adequate transportation service. The gap between Memphis and Jackson is at present unserved by the company, and this constitutes a bottleneck which impedes the flow of commerce between the northern and southern parts of this system owned by the applicant.

"The convenience of the traveling public would be greatly served by enabling the company to connect up the two parts of its service by use of operating rights over the route set out in the application.

"It is the considered opinion of the Commission upon the entire record submitted in this case that the applicant, Tri-State Transit Company of Louisiana, Inc., sustained the burden of showing that public convenience and necessity requires granting of operating rights to the applicant for service over the routes set out and carriage of passengers between Memphis and Jackson and points north thereof, and between Jackson and Memphis and intrastate points south thereof. Accordingly, the Commission will issue a certificate of convenience and necessity to the applicant authorizing the transportation of persons over the route applied for, but the same is to be limited and restricted to a closed door operation and no authority is conferred to render local service between any of the points set out in the application except Jackson and Memphis.

"Chairman Dunlap authorizes us to state that he is unable to concur in the opinion and order of the Commission in this cause."

The certificate of convenience and necessity was granted to the applicant, as appears from the face of the order, "Upon consideration of the application, the evidence adduced at the hearing and the matters and things pertaining thereto." A number of witnesses testified before the Commission on behalf of the applicant. Other witnesses testified on behalf of the Protestants. Upon the conflicting evidence thus adduced, the Commission found the issues in favor of the applicant.

The great weight of authority is that although courts are empowered to review the orders of public service commissions granting or denying certificates of convenience and necessity, the courts cannot substitute their judgment for that of the Commission. Railroad Commission v. Rowan & Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368; Fulmer v. Board of Railroad Com'rs, 96 Mont. 22, 28 P.2d 849; Pennsylvania Greyhound Lines v. Public Service Commission, 217 Ind. 221, 27 N.E.2d 348; A. & T. Motor Freight v. Public Utilities Commission, 125 Ohio St. 617, 184 N.E. 11, and other cases to like effect.

When the Commission has proceeded regularly within its jurisdiction, the courts will refuse to disturb its findings where there is material evidence to support conclusions that are neither arbitrary nor unlawful. As was well said in State v. Public Service Commission, 234 Mo.App. 554, 132 S.W.2d 1082, 1087: "The powers of the commission are so definite in regard to determining matters of public convenience and necessity that courts refuse to disturb the findings of the commission where there is testimony sufficient to support conclusions that are neither unreasonable or unlawful. The enactment of the public commission law of this state had its inception in the fact that a well equipped commission would have better opportunity to determine as to matters for which it was created than would the Judiciary."

In United States v. Morgan, 313 U.S. 409, 61 S.Ct.999, 1005, 85 L.Ed. 1429, it was said: "It will bear repeating that although the administrative process has had a different development and pursues somewhat different ways from those of courts, they are to be deemed collaborative instrumentalities of justice and the appropriate independence of each should be respected by the other."

Chapter 119, Public Acts 1933, Michie's 1938 Code, sections 5501 (1) et seq., by section 5(a) thereof provides, in part, as follows:

"In determining whether or not a certificate of convenience and necessity should be issued, the commission shall give reasonable consideration to the transportation service being furnished by any railroad, street railroad or motor carrier on the route or in the territory in which the applicant proposes to operate, the

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