Red Star Trans. Co. v. Red Dot Coach Lines

• Decision Date: 07 June 1927
• Citation: 220 Ky. 424
• Parties: Red Star Transportation Company v. Red Dot Coach Lines, et al.
• Court: United States State Supreme Court — District of Kentucky

220 Ky. 424

Red Star Transportation Company v. Red Dot Coach Lines, et al.

Court of Appeals of Kentucky.

Decided June 7, 1927.

1. Carriers. — Acts 1926, c. 112, sections 1, 3, requiring motorbus line to obtain certificate of public necessity and convenience, held to require that proposed line be necessary and convenient, notwithstanding that words "necessary or convenient" appear in concluding part of section 3, since "or" in such phrase should be construed as "and."

2. Carriers. — Certificate of public necessity and convenience held properly refused to proposed bus line between Falmouth and Covington, in view of existing services, notwithstanding that proposed line would establish hourly schedule instead of existing two-hour schedule, since Acts 1926, c. 112, calls for public and not private convenience and authorized permit only where public is concerned.

3. Carriers. — Acts 1926, c. 112, section 4, providing that commissioner must refuse application of bus line for permit over route where two or more lines are already established unless existing operations are insufficient, held not direction to foster competition to extent of two companies.

4. Carriers. — State commissioner of motor transportation has wide discretion in granting permit to motorbus company to operate bus line over proposed route.

Appeal from Franklin Circuit Court.

GUY A. HUGUELET and R.W. KEENON for appellant.

A.H. BARKER for appellee Red Dot Coach Lines.

BRADLEY & BRADLEY for appellee Kelley.

OPINION OF THE COURT BY JUDGE McCANDLESS.

Affirming.

Pursuant to the provisions of chapter 112 of the Acts of the General Assembly of 1926, the Red Star Transportation Company applied to the state commissioner of motor transportation for a certificate of public necessity and convenience, to operate a motorbus line between Falmouth, in Pendleton county, and Covington, in Kenton county, via Greenwood, Butler, Grant's Lick, Clearyville, and Newport, Ky. It duly complied with the law authorizing such application and with the procedure relative thereto. At the hearing the Red Dot Coach Lines, another corporation, operating over the same road, appeared and protested.

Falmouth is a town of 1,100 people, situated 40 miles out of Covington on the LLL highway, running from Cincinnati to Lexington. It is also connected with Covongton by the route above described. Both traverse the same route from Falmouth to Greenwood from which point the LLL highway, the principal route, continues by the way of Grassy Creek, Fricksburg, and Independence, on the west side of the Licking river, while the Butler road branches off at Greenwood and parallels the former on the east side of the river, reaching Cincinnati via Newport and Covington. On the LLL highway, the Consolidated Coach corporation operates through service from Lexington to Cincinnati, making ten trips in each direction daily, with an hourly schedule. The Red Dot Coach Lines operates over that route from Falmouth to Cincinnati, making four trips in each direction daily. Over the Butler road the Red Dot Coach Lines now operates bus service from Falmouth to Cincinnati, making four trips in each direction daily. The Louisville & Nashville Railroad Company operates six passenger trains in each direction daily between Falmouth and Cincinnati, most of which trains stop at Butler. Another bus line operates over a small part of the Butler road, branching off at Clearyville and running on to Covington, it further appearing that the section traversed by the Butler road is sparsely settled, Butler, the chief town, having only a few hundred inhabitants.

The commissioner found that between Falmouth and Covington the existing service is ample and adequate; that as to local travel along the route between the termini, the proposed additional service would be a convenience, but is not a necessity; that both necessity and convenience must concur to authorize such privilege, and therefore refused the permit. On appeal to the Franklin circuit court the same conclusion was reached and judgment entered in accordance therewith.

The Red Star Company appeals and urges that by the provisions of section 3 of the act an applicant is entitled to a permit, if it shows that the proposed privilege is either necessary or convenient to the public, and that the existing service is inadequate; that it did show such inconvenience and inadequacy, and was therefore entitled to the permit.

The act provides:

"The term `certificate' means a certificate of public convenience and necessity authorized to be issued under the provisions of this act." Section 1.

"No corporation, person or firm shall hereafter engage in the transportation of persons for hire, by motor vehicles, on any public highway in this state between fixed termini or over a regular route, without having first obtained, as in this act provided, from the commissioner of motor transportation a certificate declaring that the public convenience and necessity require such operation. The commissioner shall have power to issue to any applicant a certificate of public convenience and necessity, or to refuse to issue the same, or to issue it for partial exercise only of the privileges sought, and may attach to the exercise of the rights given by such certificate, such terms and conditions as, in his judgment, the public convenience and necessity may require. No such certificate shall be issued by the commissioner until it shall be established to the satisfaction of the commissioner after proper investigation and hearing that the privilege so sought by the applicant is necessary or convenient for the public, and that the service so proposed to be rendered by the applicant is not being adequately performed at the time of such application by any other person, firm or corporation. The burden of proof shall be on the applicant." Section 3. (Our italics.)...