McDaniel v. Com.

• Decision Date: 06 September 1957
• Docket Number: No. 4702,4702
• Citation: 199 Va. 287,99 S.E.2d 623
• Court: Virginia Supreme Court
• Parties: RALPH WALTER MCDANIEL, ET AL., ETC., ET AL. v. COMMONWEALTH OF VIRGINIA. Record

Page 623

99 S.E.2d 623

199 Va. 287

RALPH WALTER MCDANIEL, ET AL., ETC., ET AL. v. COMMONWEALTH OF VIRGINIA.

Record No. 4702.

Supreme Court of Appeals of Virginia

September 6, 1957.

Oscar L. Shewmake (John C. Goddin; Shewmake, Gary, Goddin & Blackwell, on brief), for the appellants.

R. D. McIlwaine, III, Assistant Attorney General (J. Lindsay Almond, Jr., Attorney General, on brief), for the Commonwealth.

David J. Mays; Henry T. Wickham; Tucker, Mays, Moore & Reed, on brief, for Virginia Movers' and Warehousemen's Association, amicus curiae.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

Ralph Walter McDaniel and Albert Lee Thomas, trading as McDaniel Transfer Company, the holder of certificate of convenience and necessity No. HG-52 to transport household goods, and Fawley Motor Lines, Incorporated, filed with she State Corporation Commission their joint application for transfer of the said certificates to the Fawley Motor Lines, Incorporated. Upon its appearing to the Commission that applicants had taken proper steps to bring the application for the transfer of the certificate to its attention, the Commission set the case for hearing on October 16, 1956. It ordered the applicants to cause notice to be published in the newspapers of the city of Harrisonburg and town of Broadway, and served upon the persons designated by law. On the date set for hearing, no one appeared in opposition to the transfer.

D. W. Fawley, president of Fawley Motor Lines, Incorporated, testified that his company had been engaged in the motor vehicle transportation business since 1917; that it had agreed, subject to the approval of the Commission, to purchase certificate No. HG-52 from McDaniel Transfer Company; that his company's equipment had been approved by the State Highway Commission, and that it proposed to adopt the present tariffs of the McDaniel Transfer Company then on file with the Commission and to conduct operations under the certificate in conformity with the rules and regulations of the Commission, if the requested transfer received the Commission's approval.

The evidence also shows that during the past ten years there has been a substantial increase in population and business in the city of Harrisonburg and the county of Rockingham, and that the proposed transferee desired to purchase all the rights of the then holder of the certificate.

At the conclusion of the testimony the presiding officer of the Commission stated from the bench that 'the application is granted as applied for.' However, the Commission's final order is not in accord with this statement. That order, subsequently entered on October 16, 1956, is as follows:

'From the testimony before the Commission, it appears that the public convenience and necessity requires the services of a household goods carrier between the City of Harrisonburg and Rockingham County on the one hand and all points in Virginia on the other hand and the transfer of the certificate is proper.

'IT IS, THEREFORE, ORDERED, That the transfer of the certificate is approved upon the filing of proper insurance and upon the adoption of tariffs or the publication of new tariffs as required by Chapter 12.1, Title 56, Code of Virginia.

'IT IS FURTHER ORDERED, That a new certificate of convenience and necessity for the transportation of household goods by motor vehicle between the City of Harrisonburg and the County of Rockingham on the one hand and all points in Virginia on the other hand be issued to Fawley Motor Lines, Incorporated, and that certificate HG-52 be cancelled upon the issuance of a new certificate.'

From this order applicants appeal.

The holder of the old certificate, No. HG-52, was authorized to 'engage in the business of a household goods carrier * * * over regular and irregular routes between all points within this State.' Code, § 56-338.8. Under the Commission's order, the new certificate authorizes the transferee to transport household goods only to, and from, a definite point, that is, 'between the City o Harrisonburg and the County of Rockingham on the one hand and all points in Virginia on the other hand.'

Appellants contend that on the evidence presented, the Commission had no power to suspend, revoke, alter or amend the old certificate and issue a new certificate therefor limiting and restricting the operations of the transferee to, and from, a definite point in the Commonwealth.

The same issue was before this Court in Cook Transfer v. Commonwealth, 196 Va. 384, 83 S.E.2d 733. The facts in that case were that Cook Transfer, with its principal office in Covington, Virginia, held a certificate of convenience and necessity to transport by motor vehicle, as a household goods carrier, household goods between any and all points within the Commonwealth. Cook Transfer, the transferor, and the Greyvan Storage of Virginia, the transferee, with its principal office in Richmond, filed an application, similar to the one filed in this case, requesting the Commission to approve the transfer. The Commission made the same disposition of that case which it did of this; that is, it cancelled the old certificate and issued a new certificate altering and amending the old certificate by limiting and restricting the operations of the transferee between Covington and all points in Virginia. We held that the Commission exceeded its power in cancelling the old certificate and issuing a new certificate restricting the transferee's operations to, and from, a definite point, reversed its order and remanded the case for the entry of a final order in accordance with the views expressed in the opinion.

The Commission in its opinion, and in the brief filed in its behalf in this Court, argues that the decision in the Cook case is not controlling in this case because an amendment of Code, § 56-338.14, made in 1956, changed the statutory law applied in that case.

The original statute, construed in the Cook case, reads as follows:

'Any such certificate may be transferred or leased subject to the approval of the Commission, and under such reasonable rules and regulations as may be prescribed by the Commission. The application shall be made jointly by the transferor and transferee, seller and purchaser, or assignor and assignee, or lessor and lessee.'

The statute as amended in 1956, with the added words italicized, is as follows:

'Any such certificate may be transferred or leased if the Commission after a public hearing shall find the proposed transfer or lease justified by public convenience and necessity, and under such reasonable rules, regulations, and restrictions as may be prescribed by the Commission. The application shall be made jointly by the transferor and transferee, seller and purchaser, or assignor and assignee, or lessor and lessee.'

This section, before the amendment, was section 7 of chapter 532 of the Acts of 1948, which chapter defines 'Household Goods Carriers' and provides for their regulation, supervision, control, etc. The Act is codified in the 1950 Code as sections 56-338.1 through 56-338.18, and deals exclusively with 'Household Goods Carriers.' Such carriers are defined in Code, § 56-338.1(e) as follows:

"Household goods carrier' means any person who or which undertakes whether directly or by a lease or other arrangement, to transport 'household goods', as hereinafter defined, by motor vehicle for compensation, on any highway in this State, between two or more points in this State, whether over regular or irregular routes.'

Code, § 56-338.8 provides: 'No person, not herein exempted, shall engage in motor vehicle transportation of household goods, as herein defined, for compensation on any highway within the State, unless and until he has obtained from the Commission a certificate of public convenience and necessity as a household goods carrier. Such certificate shall authorize the holder to engage in the business of a household goods carrier, as herein defined, over regular and irregular routes between all points within this State and, subject to approval of vehicles by the State Highway Commission as provided by § 56-338.9, on all of the highways of this State.' (Italics added).

The Commission held and in its brief contended in the Cook case that the foregoing section was modified by § 56-338.11, under which the legislature had delegated to it the power, on an original application, to limit and restrict the scope of operations of a household goods carrier to, and from, a definite point in the State. That section reads as follows: 'Hearing and determination. -- Upon the filing of an application for a certificate of public convenience and necessity as a household goods carrier, the Commission shall, within a reasonable time, fix a time and place of hearing of such application. If the Commission shall find the proposed operation justified by public convenience and necessity, it shall issue a certificate to the applicant, subject to such terms, limitations and restrictions as the Commission may deem proper. If the Commission shall find the proposed operation not justified, the application shall be denied.'

We rejected this contention of the Commission in the following language:

'It is held by the Commission in its written opinion which has been adopted by the Commonwealth as the major part of its brief, that this clear provision as to the scope...