Missouri Pacific Railroad Company v. Williams

• Decision Date: 10 February 1941
• Docket Number: 4-6197
• Citation: 148 S.W.2d 644,201 Ark. 895
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE, v. WILLIAMS
• Court: Arkansas Supreme Court

148 S.W.2d 644

201 Ark. 895

MISSOURI PACIFIC RAILROAD COMPANY, THOMPSON, TRUSTEE, v. WILLIAMS

4-6197

Supreme Court of Arkansas

February 10, 1941

Appeal from Pulaski Circuit Court, Third Division; J. S. Utley Judge; reversed.

Decree reversed and cause remanded.

Henry Donham and Harvey G. Combs, for appellants.

John S Mosby, for appellee.

OPINION

SMITH, J.

On April 12, 1939, B. Frank Williams, doing business as Williams Bus Line, filed an application with the Arkansas Corporation Commission, under the provisions of §§ 2023, et seq., Pope's Digest, for a permit, or certificate of convenience and necessity, to transport passengers, baggage newspapers, and express, between Osceola and Little Rock over the following State highways: On 40, from Osceola to Marked Tree, 35 miles; on 63, from Marked Tree to junction of No. 14, 5 miles; on No. 14, from junction of 63 to Newport, 53 miles; on 67, from Newport to Little Rock, 98 miles.

At the hearing of the application, the Missouri Pacific Railroad Company, the Missouri Pacific Transportation Company, the Mathis Bus Line, and the Arkansas Motor Coaches, intervened, and protested the granting of the application, on the ground that no public convenience or necessity would be served by granting the application. The application was granted, and from that order the Railroad Company, the Transportation Company, and the Mathis Bus Line appealed to the Pulaski circuit court.

A motion to dismiss the appeal was filed in the circuit court, and there overruled, but the action of the Corporation Commission in granting the permit was approved, from which order and judgment is this appeal.

The motion to dismiss the appeal has been renewed here, and in support of that motion the case of Jones Truck Lines Co. v. Powell Brothers Truck Lines, Inc., 196 Ark. 759, 119 S.W.2d 1032, is cited and relied upon.

The order of the Corporation Commission granting the permit was entered of record July 31, 1939, and appellants prayed an appeal on August 21, 1939, and on November 23, 1939, filed a transcript of the proceedings before the Corporation Commission in the office of the circuit clerk of Pulaski county.

It is apparent that the instant case is distinguishable from the Jones Truck Lines case, supra, in that, here the appeal was prayed within thirty days, the time allowed by law for that purpose; whereas, in the Jones case, supra, it was sought to extend that time by filing with the Commission a petition for rehearing. It was there held that a motion for rehearing was no longer required, and that the time for appeal could not be thus extended.

It is further insisted that the appeal should be dismissed for the reason that it was not prosecuted with the diligence required by § 2019, Pope's Digest. That section provides that when an appeal has been prayed "The secretary of said Commission shall then at once make full and complete transcript of all proceedings had before such commission in such matter and of all evidence before it in such matter, including all files therein, and deposit same forthwith in the office of the clerk of said circuit court. . . . ." The insistence is that this was not done forthwith.

The hearing before the Commission began May 10, 1939, and was continued from day to day with intervening adjournments, which prevented the hearing from being continuous, until 6:30 p. m., June 2, 1939, at which time the application was taken under advisement, and it was not until July 31, 1939, that the final order of the Commission was made and entered upon its records. Many witnesses from various points along the routes proposed to be served testified, and many exhibits were offered in evidence. These consisted, in part, of timetables, tariff sheets of fares, and compilations of passengers carried, showing the service rendered and the ability of appellants, with their present facilities, to accommodate and carry many more passengers than the number which had been transported.

There appears to have been no delay for which appellants were responsible. The proceedings before the Commission were reported stenographically by "Dorothy Dixon, Reporter for the Arkansas Corporation Com mission," and her certificate as such to the transcription of her notes was not made until November 1, 1939. The certificate of the Secretary of the Commission to the transcript required by the portion of § 2019, Pope's Digest, copied above, was not made until November 18, 1939, and the transcript, as certified by the Secretary of the Commission, was filed with the clerk of the circuit court on November 23, 1939, only five days later.

In the case of Lincoln v. Field, 54 Ark. 471, 16 S.W. 288, Justice Hemingway defined the word forthwith as follows: "Webster defines forthwith as meaning: 'Immediately, without delay, directly,' while Worcester gives the same definition, omitting 'directly.' In this sense if an act is directed to be done forthwith, it seems to exclude the idea of other acts intervening between the direction and its execution. But as some time is necessary to the doing of everything, varying in length with the thing to be done, the word has in law received a more liberal interpretation. Bouvier's definition is, 'As soon as by reasonable exertion, confined to the object, it may be accomplished.' This seems to be the accepted legal sense of the word."

We conclude that the transcript had been deposited forthwith in the office of the circuit court clerk, within the meaning of § 2019 Pope's Digest.

In the order granting the application, the Commission reviewed the testimony, and made findings of fact thereon. Many of the witnesses--and there were 34 of them--who testified in behalf of appellee, expressed the opinion that the additional bus service which Williams proposed to furnish was required as a matter of public convenience and necessity; while all of the 58 witnesses, residing at towns along the route Williams proposed to serve, who testified in behalf of appellants on this subject, expressed the contrary opinion. There was also offered in evidence resolutions by various civic clubs in cities and towns along the route Williams proposed to serve, protesting the granting of the permit, upon the ground that the public convenience and interest did not require its issuance.

The Missouri Pacific Railroad Company and the Missouri Pacific Transportation Company serve only that portion of the proposed route of the Williams Bus Line extending from Newport to Little Rock; while the Mathis Bus Line served a portion of the Williams' route in Mississippi, Poinsett and Craighead counties.

The Mathis Bus Line had discontinued its service, but had obtained the consent of the Commission to do so, upon the representation that on account of the condition of the highways covered by its permit it...