Santee v. Brady

• Decision Date: 29 October 1945
• Docket Number: 4-7719
• Citation: 189 S.W.2d 907,209 Ark. 224
• Parties: Santee v. Brady
• Court: Arkansas Supreme Court

189 S.W.2d 907

209 Ark. 224

Santee v. Brady

No. 4-7719

Supreme Court of Arkansas

October 29, 1945

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

Reversed.

Ward Martin, for appellant.

Ed E. Ashbaugh, for appellee.

McFaddin J. Mr. Justice Robins did not participate in the consideration or decision of this case.

OPINION

McFaddin J.

This appeal involves a permit issued by the Arkansas Corporation Commission on October 24, 1944, to appellant, E. L. Santee, to operate as a commercial carrier of passengers, light express and mail, from Vilonia to Mount Vernon and Rosebud. The appellees are competitors of Santee on part of the route.

We detail the routes and locations involved, to assist in an understanding of the issues. From Little Rock: U. S. highway 65 runs northwesterly to Conway 32 miles; State highway 5 runs north to Vilonia approximately 25 miles; and U. S. highway 67 runs northeasterly to Beebe, 35 miles and on to Searcy (51 miles from Little Rock). U. S. highway 64 runs easterly from Conway via Bryant's store, Vilonia, and El Paso to Beebe (45 miles from Conway). From Bryant's store on U. S. highway 64 (8.2 miles east of Conway) State highway 36 runs northeasterly to Mount Vernon and Rosebud (26.4 miles from Bryant's store); and thence easterly 22 miles from Rosebud to Searcy. Heber Springs is 12 miles north of Rosebud on State highways 5 and 25. Vilonia (reached from Little Rock by State highway 5 and other public roads) is located on U. S. highway 64, 10.2 miles east of Bryant's store (which is at the intersection of U. S. highway 64 and State highway 36, and is 8.2 miles east of Conway). Mount Vernon is located on State highway 36, 16.4 miles northeast of Bryant's store. Rosebud is located on State highway 36, 10 miles northeast of Mount Vernon. Rosebud is also located on State highway 5, and is 12 miles south of Heber Springs.

Santee had a permit, not here under attack, to operate as a commercial carrier from Little Rock to Vilonia and return, on State highway 5, and connecting public roads, and serving intermediate points. Santee was operating under this permit, and on July 6, 1944, he filed an application to extend his service from Vilonia to Heber Springs, traveling U. S. highway 64 from Vilonia to Bryant's store and State highway 36 from Bryant's store to Mount Vernon and Rosebud, and State highways 5 and 25 from Rosebud to Heber Springs, with certain provisions as to "closed doors," (which expression will be discussed later). This extension permit is the issue now before this court.

The appellees here were the remonstrants before the Commission. They are: (1) Mrs. Carl Brady, who operates a bus line between Conway and Naylor (a point on State highway 36 several miles south of Mount Vernon); (2) Mrs. J. A. Harrison, who operates a bus line from Mount Vernon to Conway on State highway 36 and U. S. highway 64, and also a bus line from Mount Vernon to Searcy on parts of State highway 36; (3) C. M. Mays, who operates a bus line from Rosebud to Searcy on State highway 36; and (4) R. C. Anthony, who operates a bus line between El Paso and Conway on U. S. highway 64.

On August 24, 1944, the Arkansas Corporation Commission granted Santee the extension, not as requested, but only from Vilonia to Rosebud, and with provision for "closed doors" from Vilonia to Mount Vernon and Rosebud; and permitted only through passengers from and to Little Rock over the extended route from Vilonia to Rosebud. The Commission refused the application from Rosebud to Heber Springs. Since Santee has not appealed from that refusal, we disregard so much of the evidence as concerns availability of transportation to and from Heber Springs.

When the Arkansas Corporation Commission granted the extension permit to Santee under date of August 24, 1944, the remonstrants (appellees) appealed to the Pulaski circuit court, which reversed the order of the Commission and denied Santee the extension. Santee has appealed to this court, and seeks to have the circuit court judgment reversed and the extension permit restored, as granted by the Commission.

The act in effect at the time of the hearing before the Arkansas Corporation Commission was Act 367 of the General Assembly of 1941. 1945 legislation concerning the Arkansas Corporation Commission is not involved in this opinion. The law governing such a case as this one has been fairly well charted, as is shown by the following cases: Mo. P. R. Co. v. Williams, 201 Ark. 895, 148 S.W.2d 644; Potashnick Truck Service, Inc., v. Missouri & Arkansas Transportation Co., 203 Ark. 506, 157 S.W.2d 512; Taylor v. Black Motor Lines, 204 Ark. 1, 160 S.W.2d 859; Potashnick Local Truck System, Inc., v. Fikes, 204 Ark. 924, 165 S.W.2d 615; Mo. Pac. Transportation Co. v. Gray, 205 Ark. 62, 167 S.W.2d 636. From these cases we mention a few guiding principles:

A. This court tries this case de novo, and renders such judgment as appears to be warranted and required by the testimony. Such is the provision in § 2020, Pope's Digest, and the holding in Mo. Pac. Rd. Co. v. Williams, and also in Potashnick Truck Service v. Mo. & Ark. Transportation Co.

B. "The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required." Such is the rule stated in Mo. Pac. Rd. Co. v. Williams, and followed in the later cases, and restated in Potashnick Local Truck Service v. Fikes.

With these points in mind, we proceed to the facts as disclosed by the record in this case. The Commission allowed Santee to extend his operations from Vilonia to Mount Vernon and Rosebud. Twelve or more witnesses from these last two mentioned localities appeared in support of Santee's application. They testified, and the record abundantly supports them, to the effect that persons living in Rosebud or Mount Vernon have no way to get to Little Rock and transact business and get home the same day, because of the inadequacy of the present service offered by the remonstrants and the connecting lines. Furthermore, the present routes are longer and the fares more expensive than the route proposed by Santee. The extension sought by Santee would allow Mount Vernon and Rosebud citizens to leave home at 7:30 or 8:00 a.m. and travel direct and without transfer to Little Rock, arriving at 10:00 a.m.; and then to leave Little Rock at 3:30 p.m. and reach Mount Vernon and Rosebud at 5:30 or 6:00 p.m. of the same day. No such service is now available to them. The full Santee service, as covered by the extension permit granted by the Commission, would be 7 days a week as follows: Leave Rosebud 7:30 a.m. and 3:30 p.m. (Mount Vernon thirty minutes later in each instance) and arrive in Little Rock at 10:00 a.m. and 6:00 p.m., respectively. Leave Little Rock 7:30 a.m. and 3:30 p.m., and arrive in Rosebud 10:00 a.m. and 6:00 p.m., respectively, (Mount Vernon thirty minutes earlier). Santee would use two new buses for this extension, with a capacity of 28 persons for each bus.

I. Public Convenience and Necessity. Should the people of these communities -- Rosebud and Mount Vernon -- have the benefit of this Santee service, or is the present service ample and satisfactory for all practical purposes? In Pond on "Public Utilities," 4th Edition, § 913, the rule is stated:

"In granting certificates, the public convenience and necessity should be the first consideration, and the interest of public utilities already serving the territory secondary, while the desire of a new applicant for a certificate is relatively a minor matter for the consideration of the commission."

And in 42 C. J. 687, in discussing the determination of public convenience and necessity, the rule is stated:

"The convenience and necessity which the law requires to support the public service commission's order for the establishment or extension of motor vehicle transportation service is the convenience and necessity of the public as distinguished from that of an individual or any number of individuals, and this is the primary matter to be considered in determining what constitutes such public convenience and necessity in a particular case, and the propriety of granting a certificate to that effect. The necessity for the proposed service must be considered as well as the added convenience thereof, although the word 'necessity' is not used in this connection in the sense of being essential or absolutely indispensable, but in the sense that the motor vehicle service would be such an improvement of the existing mode of transportation as to justify or warrant the expense of making the improvement."

At present the people in Rosebud and Mount Vernon, to get to Little Rock, must travel by bus to either Conway or Searcy and...