Jessup v. Commonwealth, Record No. 2191.
| Decision Date | 20 November 1939 |
| Docket Number | Record No. 2191. |
| Citation | 174 Va. 133 |
| Parties | S. A. JESSUP AND W. J. SHEPHERD, ET AL. v. COMMONWEALTH OF VIRGINIA, ETC. |
| Court | Virginia Supreme Court |
Present, Campbell, C.J., and Holt, Hudgins, Gregory, Browning, and Eggleston, JJ.
1. MOTOR VEHICLE CARRIERS — Certificates of Convenience and Necessity — Commission Not Required to Grant Certificates Covering All Sectors of Every Highway. — It is not mandatory upon the Corporation Commission to grant a certificate of public convenience and necessity authorizing an applicant to establish a freight line by motor vehicle over all sectors of every highway, even though there may be no other carrier by motor vehicle serving that particular sector of the highway in question. Whether such a right shall be granted is addressed to the sound discretion of the Commission.
2. MOTOR VEHICLE CARRIERS — Certificates of Convenience and Necessity — Section 4097y(6) of the Code of 1936 — Enumeration of Things to Be Considered by Commission Not Exclusive. — The use of the words "may among other things," in section 4097y(6), subsection (d), of the Code of 1936, preceding the enumeration of four other things, which may be considered by the Corporation Commission in determining whether a certificate of public convenience and necessity shall be granted to a carrier by motor vehicle, shows clearly that the four things enumerated were not the only things the legislature intended to be considered by the Commission in determining whether or not a certificate should be granted.
3. MOTOR VEHICLE CARRIERS — Certificates of Convenience and Necessity — Contention that Convenience and Necessity of Public within Small Sector Should Alone Be Considered — Case at Bar. — In the instant case an applicant for the removal of restrictions from certificates of public convenience and necessity contended that it was the duty of the Corporation Commission to consider the convenience and necessity of that part of the public within a 29-mile sector between two towns to the exclusion of the necessity and convenience of the public over other parts of the route, totaling 127 miles, and at the termini of the freight lines.
Held: That the applicant's contention was unsound.
4. MOTOR VEHICLE CARRIERS — Certificates of Convenience and Necessity — Public Convenience Paramount Consideration. — In considering an application for a certificate of public convenience and necessity for the establishment of a motor freight line, public convenience is always the paramount consideration.
5. MOTOR VEHICLE CARRIERS — Certificates of Convenience and Necessity — Convenience and Necessity of Entire Public Affected Should Be Considered. — In arriving at the paramount consideration, that is, public convenience, in considering an application for a certificate of public convenience and necessity for the establishment of a motor freight line, the convenience and necessity of the entire public affected by the proposed line should be considered.
6. MOTOR VEHICLE CARRIERS — Certificates of Convenience and Necessity — Petition for Removal of Restrictions — Permitting Tariff to Be Filed Showing Service Contrary to Restrictions — Case at Bar. — In the instant case, a petition for the removal of restrictions from certificates of public convenience and necessity, petitioners had been soliciting freight in terminal cities which were excluded from their certificates. They contended that the Corporation Commission tacitly approved the operation between these excluded cities, because a tariff was filed showing service between the two cities. Within a reasonable time after the filing of the tariff, it was discovered that under such tariff freight was being transported by petitioners between the excluded cities and a corrected tariff was required to be filed.
Held: That even if the Corporation Commission had approved the tariff as filed, it was an unsound contention that it would have in the slightest manner changed the restrictions in the certificates under which the petitioners operated or a single lawful right thereunder.
7. CARRIERS — Certificates of Convenience and Necessity — Premised upon Public Need. — The granting of certificates of public convenience and necessity or the enlargement of the authority under any outstanding certificate is premised upon the public need for the authority sought.
8. CARRIERS — Certificates of Convenience and Necessity — Discretion of Corporation Commission — Discretion of Commission in Supervising Carriers. — The Corporation Commission is vested with wide discretion in the issuance of certificates of public convenience and necessity and in the supervision of transportation by all common carriers.
9. STATE CORPORATION COMMISSION — Appeal and Error — Judgments Presumed Correct. — Judgments of the Corporation Commission are presumed to be correct.
10. MOTOR VEHICLE CARRIERS — Certificates of Convenience and Necessity — Petition for Removal of Restrictions — Evidence Justifying Denial of Petition — Case at Bar. — In the instant case, a petition for the removal of restrictions from certificates of public convenience and necessity for the operation of a motor vehicle freight line, petitioners were operating under certificates which prohibited through carriage between two cities. The evidence tended to show that public convenience and necessity was in a large measure confined to that part of the public living and doing business in an area which comprised only 29 miles of the total distance of 127 miles on the route and that several other carriers rendered reasonable and adequate service to shippers and receivers of freight to and from the excluded cities. The Corporation Commission denied the application of the petitioners.
Held: No error.
Appeal from an order of the State Corporation Commission.
The opinion states the case.
Leon M. Bazile, for the appellants.
Oscar L. Shewmake, D. H. Leake and Lucian H. Cocke, Jr., for the appellees.
S. A. Jessup acquired two certificates of public convenience and necessity issued by the Corporation Commission. Certificate No. 313-C was issued on April 13, 1933, authorizing him to transport property by motor vehicle as a common carrier between Dillwyn and Lynchburg, over highways 15, 60, 24 and 460, with restrictions prohibiting him from accepting any freight between Appomattox and Lynchburg and intermediate points. Certificate No. 321-C was purchased by Jessup from V. A. Newton. This certificate authorized him to transport freight by motor vehicle as a common carrier between Richmond and Dillwyn over highways 6 and 15, passing through the villages and towns of Crozier, Goochland Courthouse, George's Tavern, Columbia, Dixie, Fork Union, Bremo Bluff and New Canton with restrictions that "no freight shall be taken on at Richmond for delivery in Lynchburg and no freight shall be taken on at Lynchburg for delivery in Richmond; * * *." There were certain other restrictions in the certificate which are not pertinent to the issue presented.
Jessup, with the consent of the Commission, sold an interest in the certificates to W. J. Shepherd. Later, Jessup and Shepherd leased the right to transport freight over the highway routes named to the Rapid Transit Lines, Inc. The Rapid Transit Lines, Inc., subleased part of these rights to B. J. Knight. Under the sublease Knight was prohibited from accepting freight at any intermediate points between Richmond and Lynchburg, except between Buckingham Courthouse and Appomattox, a distance of 22 miles.
The parties stated that they were of opinion that Jessup and Shepherd, as joint owners of the two certificates, had the right to transport freight by motor vehicles over the highway routes named from Richmond to Lynchburg and from Lynchburg to Richmond. Knight, acting on this opinion, in June, 1938, launched an active campaign in the two cities soliciting through freight from Richmond to Lynchburg and from Lynchburg to Richmond. When these facts were brought to the attention of the Commission, it notified Knight that he had no authority from the Commission to transport shipments of freight originating in Richmond for Lynchburg or in Lynchburg for Richmond. Upon receipt of...
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...Southside Transp. Co. v. Commonwealth, 157 Va. 699, 161 S.E. 895; Turner v. Hicks, 164 Va. 612, 180 S.E. 543; Jessup v. Commonwealth, 174 Va. 133, 5 S.E.2d 482, and Virginia Stage Lines, Inc. v. Commonwealth, 185 Va. 390, 38 S.E.2d 576. The issue before us is one of the correct construction......
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