McKee v. Pub. Serv. Comm'n., (No. 9258)

• Decision Date: 03 February 1942
• Docket Number: (No. 9258)
• Citation: 124 W.Va. 10
• Parties: Edward McKee and John McDonald, etc. v. PublicService Commission et al.
• Court: West Virginia Supreme Court

124 W.Va. 10

Edward McKee and John McDonald, etc.

v.Public Service Commission et al.

(No. 9258)

Supreme Court of Appeals of West Virginia.

Submitted January 14, 1942.

Decided February 3, 1942.

1. Automobiles

One operating taxicabs over the public highways of this State from a fixed stand on call of the public, is engaged in the business of a common carrier, for which a certificate of convenience and necessity, to be issued by the Public Service Commission, is required, as provided by subsection (a), section 5, article 2, of chapter 86, Acts of the Legislature, 1939.

2. Automobiles

Where, under subsection (a), section 5, article 2, chapter 86, Acts of the Legislature, 1939, a certificate of convenience and necessity is granted a common carrier, to operate over a designated route or routes, regular or irregular, no additional certificate may be granted covering such route or routes, unless the service furnished under the first certificate is found, by the Public Service Commission, to be inadequate or insufficient, and the holder of such certificate first given an opportunity to remedy such service within a reasonable time after such finding.

3. Automobiles

Where, under subsection (a), section 5, article 2, of chapter 86, Acts of the Legislature, 1939, a certificate of convenience and necessity is granted to operate a taxicab over the public highways, from a stand in a particular town, city or other designated point, and over a territory defined or unrestricted, and not over any designated route or routes, and the services rendered thereunder are found by the Public Service Commission to be not reasonably efficient or adequate, a certificate of like character may be granted to another and different person, to operate in the same territory, without giving to the holder of the certificate first issued an opportunity to remedy the services undertaken to be performed thereunder.

Riley, Judge, absent.

Appeal from Public Service Commission.

Proceeding in the matter of the application of Neil F. Whiteman, doing business as City Cab for a certificate of convenience and necessity to operate two motor vehicles, as a common carrier of passengers in taxicab service, from a stand in the City of Keyser, wherein Edward McKee and John McDonald, doing business as Mac's Taxi, filed protests. From an order of the Public Service Commission granting the applicant a certificate of convenience and necessity, the protestants appeal.

Affirmed.

Kenna, Judge, dissenting.

Emory Tyler and R. A. Welch, for petitioners. David G. Lilly, Jr., for respondent.

Fox, President:

This appeal involves the correctness of an order of the Public Service Commission, entered on the 27th day of June, 1941, granting to Neil F. Whiteman, doing business as City Cab, a certificate of convenience and necessity to operate two motor vehicles, as a common carrier of passengers in taxicab service, from a stand in the City of Keyser.

On July 23, 1940, Whiteman, hereinafter referred to as "applicant," filed his application for a certificate of convenience and necessity "to operate on call of the public over an irregular route to and from Keyser to all points in West Virginia and will operate from a stand in Keyser." At the time of the filing of this application, Edward McKee and John McDonald, doing business as Mac's Taxi, hereinafter referred to in the singular as "protestant," operated a taxicab service in the City of Keyser under a certificate of convenience and necessity granted by the Public Service Commission, by which, as held by the Commission, it was authorized to operate from a stand in the City of Keyser in serving certain territory, and not over any particular route or routes, and thereafter filed two protests against the issuance of a certificate to Whiteman, and in one of such protests averred that the service provided by it under its certificate was efficient and adequate, offered to furnish additional service as the public needs might require, and asked an opportunity to furnish such additional service as the Commission might deem necessary. Hearings were held upon the application, and the protests, and on June 27, 1941, a final order was entered, from which we quote the following:

"The evidence adduced by the applicant shows that the taxi-cab service rendered by the protestants in the City of Keyser is not efficient and adequate nor satisfactory to a substantial number of inhabitants of said city * * *; that convenience and necessity requires the service the applicant proposes to render; and that the protestants, under the certificate of convenience and necessity held by them, are authorized to operate from a stand in the City of Keyser in serving certain territory, not to operate over any particular route or routes.

"Upon consideration whereof, the Commission is of the opinion and finds that the taxi-cab service furnished by the protestants in the City of Keyser is not reasonably efficient and adequate; that the protestants, having been given the opportunity and having failed in their duty to the public, should not be given further opportunity to remedy such inadequacy; and that the applicant, Neil F. Whiteman, doing business as City Cab, should be issued a certificate of convenience and necessity to operate not more than two taxicabs in said City of Keyser.

"It is, therefore, ordered that the applicant, Neil F. Whiteman, doing business as City Cab, be, and he hereby is, issued a certificate of convenience and necessity, designated P. S. C. M. C. Certificate No. 873, to operate two motor vehicles as a common carrier of passengers and taxi-cab service from a stand in the City of Keyser, Mineral County."

No question is here raised by the protestant as to the finding of the Commission as to the efficiency and adequacy of the service rendered by it, apparently conceding that the factual finding of the Commission on that point is conclusive on that issue. The principal, if not only, question raised is the failure of the Commission to point out and define the nature of the inefficiency and inadequacy of such service, and to give it reasonable opportunity to remedy the same, before any certificate could be issued to the applicant herein. Protestant relies, in support of its position, on subsection (a), section 5, article 2, chapter 86, Acts of the Legislature, 1939, reading as follows:

" (a) It shall be unlawful for any common carrier by motor vehicle to operate within this state without first having obtained from the commission a certificate of convenience and necessity. Upon the filing of an application for such certificate and after hearing thereon, if the commission finds from the evidence that the public convenience and necessity require the proposed service or any part thereof, it shall issue the certificate as prayed for, or issue it for the partial exercise only of the privilege sought, and may attach to the exercise of the right granted by such certificate such terms and conditions as in its judgment the public convenience and necessity may require, and if the commission shall be of the opinion that the service rendered by any common carrier holding a certificate of convenience and necessity over any route or routes in this state is in any respect inadequate or insufficient to meet the public needs, such certificate holder shall be given reasonable time and opportunity to remedy such inadequacy or insufficiency before any certificate shall be granted to an applicant proposing to operate over such route or routes as a common carrier. Before granting a certificate to a common carrier by motor vehicle the commission shall take into consideration existing transportation facilities in the territory for which a certificate is sought, and in case it finds from the evidence that the service furnished by existing transportation facilities is reasonably efficient and...