Missouri Pacific Transportation Co. v. Inter City Transit Co.

• Decision Date: 21 November 1949
• Docket Number: 4-8958
• Citation: 224 S.W.2d 372,216 Ark. 95
• Parties: Missouri Pacific Transportation Company v. Inter City Transit Company
• Court: Arkansas Supreme Court

224 S.W.2d 372

216 Ark. 95

Missouri Pacific Transportation Company v. Inter City Transit Company

No. 4-8958

Supreme Court of Arkansas

November 21, 1949

Appeal from Pulaski Circuit Court, Third Division; J. Mitchell Cockrill, Judge.

Modified and Remanded.

L M. Crouch, Jr., Thomas Harper, Harvey G. Combs, Thos. B Pryor, Jr., and Henry Donham, for appellant.

James T. Gooch and Milton McLees, for appellee.

OPINION

Leflar J.

Inter City Transit Company (hereinafter called Inter City) has for some years been operating as a common carrier of passengers, mail, baggage, newspapers and light express over U. S. highways 64 and 65 between Little Rock and Morrilton, serving those cities and communities between them. This operation was under permits granted by the Public Service Commission in 1941, 1942 and 1943, which permits were subject to various limitations both as to the time during which they should continue and the character of service authorized by them.

On April 29, 1948, Inter City filed a new application, the one now in controversy, for a certificate of public convenience and necessity authorizing it to operate between Little Rock and Fort Smith over U. S. highways 64 and 65 and between Russellville and Fort Smith over State highways 7 and 22. By amendment the application prescribed "closed door" operation over certain portions of the routes. Protests were filed by Missouri Pacific Transportation Company (hereinafter called Missouri Pacific), by Crown Coach Company (hereinafter called Crown) and by various others; though Missouri Pacific and Crown represent the only protestants involved in this appeal. Missouri Pacific operates bus lines over the identical routes covered by Inter City's application, with numerous schedules in each direction daily. Crown operates bus lines between Little Rock and Fort Smith on State highway 10, a parallel route, also between Alma and Fort Smith as part of its Fort Smith-Joplin service. Crown's operation would compete with the transportation offered by Inter City's application only on through service between Little Rock and Fort Smith and on U. S. highway 64 between Fort Smith and Alma. Missouri Pacific would compete with all aspects of the service offered by Inter City's application.

At the hearing before the Public Service Commission, Inter City produced 119 witnesses in support of its application, and protestants offered the testimony of some 157 witnesses. The transcript before this Court is some 1,100 pages in length. Most of the applicant's witnesses testified as to the inadequacy of present passenger transportation service for local travelers between the cities which lie between Little Rock and Fort Smith on highways 64, 65 and 22. These witnesses testified that buses now rendering this local service were often so crowded that passengers were required to stand in the aisles, that buses already full often failed to pick up would-be passengers standing beside the highway or waiting in small communities, and that service was particularly poor at certain peak periods in the early morning and late afternoon when students and teachers were going to and coming from school and workers were going to and coming from their places of employment. The testimony tended to show that the through schedules maintained by Missouri Pacific, numerous though they were, were not (and possibly could not be) geared to the demands of this peak-period local traffic. Such testimony was given, for example, as to the service from Russellville to Little Rock, from Pottsville to Russellville, from Atkins to Conway, from Morrilton to Russellville, from Conway to Morrilton, from Menifee to nearby towns, from Blackwell to Conway and other towns, from Conway to Dardanelle, from Morrilton to Little Rock, from Piney to nearby towns, and similarly as to travel to and from Clarksville, Knoxville, Lamar, London, Coal Hill, Hartman, Mulberry, Dyer, Paris, Delaware, Alma, Dardanelle, Charleston, Ratcliff, Subiaco, Branch and other communities. These were located all along those parts of highways 64, 65 and 22 covered by Inter City's application. The testimony just mentioned constitutes by no means an exhaustive list of the evidence offered on the applicant's behalf; it is merely illustrative. Missouri Pacific offered in evidence the testimony of many witnesses to the effect that its service along the contested routes was either excellent or adequate. Numerous exhibits were put in evidence by all parties. Crown gave convincing evidence of the excellence of its service along highway 10.

The Commission's findings of fact based on this evidence were as follows:

"As stated, numerous witnesses appeared in support of and in opposition to the proposed operation. It is noted, however, that no public witnesses from Fort Smith, Little Rock or North Little Rock appeared in support of the application. Applicant's witnesses were primarily concerned in securing additional service which would enable them to arrive at and depart from points along the proposed route at times coinciding with their hours of work or school. In many instances schedules presently being operated do not afford residents along the proposed routes the opportunity of using public transportation. For example, a person living in Paris who is employed in Fort Smith, working from 9:00 a. m. until 5:00 p. m. would have to leave Paris at 6:50 a. m. arriving in Fort Smith at 8:10 a. m. He would have to wait in Fort Smith until 7:15 p. m. before he could leave and arrive in Paris at 8:27 p. m. The same situation, with variations, exists at most points now served by protestants.

"The record shows, and it should be borne in mind, that protestant, because of its extensive operations, is forced to arrange schedules to connect at Little Rock or Fort Smith with its own or those of its connecting carriers. This procedure is generally accepted as prudent operating practice on the part of large carriers because it affords the necessary convenience to the long distance traveler of short lay-overs; however, it can be readily seen, and we cannot ignore the fact that such method of arranging operating schedules cannot possibly take into consideration the necessity or convenience of the worker or student whose patronage of a public transportation system is almost solely limited to a distance of rarely in excess of thirty (30) miles. Evidence introduced by applicant herein is almost entirely limited to the needs and convenience of the public residing along the proposed routes which requires a service of local or interurban character."

On the basis of these findings of fact the Commission reached the following conclusions:

"(a) The applicant is fit, willing and able, financially and otherwise, to conduct the operations herein proposed.

"(b) The present and future public convenience and necessity require the type of service as proposed by this applicant.

"(c) The granting of this application, subject to the amendments hereinbefore set out, will not materially affect the financial position of protestants herein.

"(d) The certificate to be granted should be restricted against handling traffic originating in Little Rock, North Little Rock destined to Fort Smith and, in the reverse direction, against traffic originating in Fort Smith destined to Little Rock and North Little Rock."

The order entered by the Commission authorized Inter City to operate in accordance with its application over highways 64, 65, 7 and 22, with closed doors between certain towns as specified in the amended application, and with the added limitation, in accordance with item (d) in the conclusions just quoted:

"(c) No passengers originating in Fort Smith, Arkansas, destined to Little Rock and/or North Little Rock, Arkansas, or originating in Little Rock or North Little Rock and destined to Fort Smith,...