Seaboard Air Line R. Co. v. Com.
| Decision Date | 16 June 1952 |
| Docket Number | No. 3980,3980 |
| Citation | 71 S.E.2d 146,193 Va. 799 |
| Parties | SEABOARD AIR LINE RAILROAD COMPANY v. COMMONWEALTH OF VIRGINIA, ET AL. Record |
| Court | Virginia Supreme Court |
Eppa Hunton, IV, Charles T. Abeles and Walter C. Scott, Jr., for the appellant.
Oscar L. Shewmake and John C. Goddin, for the appellees.
The Seaboard Air Line Railroad Company, hereinafter called Seaboard, made application to the State Corporation Commission for a certificate of public convenience and necessity authorizing it to operate as a common carrier of property (freight and express) by motor vehicle between Norfolk-Portsmouth, Virginia, and the Virginia-North Carolina state line near Branchville, Virginia.
The route over which Seaboard applied for permission is thus set out in its application:
'From Portsmouth over U.S. Highway 58 to junction with Va. Highway 35, thence over Va. Highway 35 to junction with Va. Highway 195, thence over Va. Highway 195 to Va.-N.C. State Line; also from junction of Va. Highway 35 with Va. Highway 673 to Newsoms.'
The service proposed would be operated in each direction daily, except Saturdays and Sundays, by truck leaving Portsmouth at 6 A.M. and arriving at Branchville at 9:36 A.M. In the opposite direction the vehicle would leave Branchville at 10:56 A.M. and arrive at Portsmouth at 2:40 P.M.
Notice of this application was given to public officials in the cities, towns and counties through which the proposed route would pass and to the common carriers serving that area. Three certificated common carriers of freight by motor vehicle i.e., Estes Express Lines, Wilson Trucking Company, and Ruby Nelms, trading as Smithfield Lines, each of which operates over part of the proposed route and renders service in that territory, appeared in opposition to award of the certificate. After hearing the evidence bearing upon whether or not public convenience and necessity required this supplementary service, award of the certificate was refused, and from that order Seaboard appealed.
Seaboard operates a steam railroad from Norfolk-Portsmouth to Branchville, Va. This line of railroad then extends on from Branchville to Norlina in North Carolina where it connects with Seaboard's main line railroad which runs from Richmond, Virginia, to Norlina, and thence on southwardly to Henderson, N.C., and other points. In addition to Seaboard's freight stations at Norfolk-Portsmouth and Branchville, it maintains and serves intermediate freight stations along this road, between Portsmouth and Branchville, at Bowers, Magnolia, Suffolk, Carrsville, Franklin, Newsoms and Boykins.
The proposed motor transportation which Seaboard seeks to inaugurate would be co-ordinated with its rail service and be auxiliary and supplemental thereto. That is, if granted the certificate, Seaboard proposes to transport only its less-than-carload intrastate shipments by motor vehicle but on rail bills of lading and at rail rates and tariffs. It would receive, transport and deliver this freight and express now carried by rail, along with such additional shipments from other patrons, if any be obtained, to and from its freight stations on its rail line between the designated termini. In other words, all less-than-carload intrastate freight and express offered to it for transportation to and from its railroad stations in the towns and cities mentioned would be transported by truck.
The highway route over which Seaboard desires to operate closely parallels its road bed between Portsmouth and Branchville, with the exception of where the proposed route passes through Courtland, Virginia. But Seaboard does not ask to serve that town for it is not on its rail line. The distance from Portsmouth to Branchville along the highway is 74 miles. Of this proposed route about 51 miles thereof is now served by Estes Express Lines, which holds a certificate allowing it to operate as a freight carrier from Norfolk-Portsmouth along route 58 to Courtland, and thence on westwardly to other points. Objector, Wilson Trucking Company, operates as a certificated common carrier of property from Norfolk-Portsmouth over Highway 58 to Suffolk and thence on northwestwardly to Richmond. The third objector, Smithfield Lines, is certificated to operate from Norfolk-Portsmouth by way of Driver, Va., to Suffolk, Va., and so traverses in part the route over which Seaboard proposes to operate. The only points on Seaboard's proposed route not now served by certificated motor carriers are the small towns of Newsoms, Boykins and Branchville, all of which are comparatively near the North Carolina state line and have Seaboard's rail service.
Between Portsmouth, Va., and Norlina, N.C., Seaboard now operates one daily through freight train and one daily local freight train each way. All less-than-carload freight and express moving to and from its several stations between Portsmouth and the North Carolina state line is handled on the local freight trains.
If awarded the certificate, Seaboard says that it contemplates handling and transporting only the less-than-carload freight and express shipped to and from its stations along the proposed route. Full carload shipments will continue to be transported by rail. According to Seaboard, the proposed operation, if put into effect, would 'relieve the trains entirely from handling less-car-load freight' and would 'eliminate all stops (of the local freight train) solely for the loading and unloading less-car-load freight. ' These less-than-carload intrastate shipments now amount to an average of about forty-one tons per month.
The volume and character of the freight, the station or stations to which shipped, the number of stops made, the cars available and used and the amount of switching and other work required often tends to retard prompt delivery by rail, and at times these circumstances render it necessary to back-haul certain cars or let them lie over until the next day, thus delaying the arrival and delivery of shipments.
It appears from the testimony that transportation of these less-than-carload shipments by motor vehicle would advance delivery at various stations and quite often provide daily instead of intermittent service. At times it would expedite delivery at some stations by as much as a day. The use of trucks would also release from service some railroad cars for use other than as now employed. Seaboard's local freight trains would continue to operate, yet elimination of the frequent stops incident to carriage of less-than-carload shipments would permit its schedules to be improved, hasten the movement of cars, and so result in expediting to some extent carload shipments of freight along the line.
Motor vehicle transportation would also reduce some operating expenses that are now incurred. The estimated savings in train operating time and in car use would bring about an annual reduction of approximately $2,800 in expenses incurred on the service from Norfolk-Portsmouth to Henderson, N.C.
It is, however, significant that no shipper or receiver of freight, or any other party within the area sought to be served, has appeared to express a preference or desire that this service be inaugurated. Nor has any such person intimated in any manner that the present service along the route or in the area is inadequate or that public convenience and necessity require this supplemental service.
The right has been granted to Seaboard by the Interstate Commerce Commission to operate motor vehicles in interstate transportation of freight and express to and from its stations between Norfolk-Portsmouth, Va., and Norlina and Henderson, N. C. Like authority for intrastate transportation of property by motor vehicle to and from its stations along this line within North Carolina has also been awarded to Seaboard by that state. Under these permits or certificates, it now engages in the carriage of property by motor vehicle in interstate commerce to and from its stations on this line in Virginia and in North Carolina, and it engages in the transportation of intrastate shipments along the line within North Carolina. The service now sought to be inaugurated in Virginia would be accomplished by transportation of freight and express on the same trucks now used and on such additional equipment as might be necessary.
During the proceedings before the State Corporation Commission, Seaboard expressed unwillingness to accept a certificate limited to that part of the proposed route which is not served by any certificated carrier, i.e., Newsoms, Virginia, to the North Carolina state line.
Seaboard also says that it would be expensive, and impracticable for it and the present certificated carriers to attempt to render a co-ordinated service by use of each other's facilities. It asserts that performance of the necessary operating details to render the proposed service satisfactory and economical demands that it exercise exclusive supervision and control over the contemplated undertaking. It is unwilling to attempt such co-ordinated service along this line.
The objection of Estes Motor Lines and the other two carriers to award of the certificate is two-fold. They contend (1) that the statute does not authorize the Commission to grant a certificate of this character which is auxiliary and supplemental to the rail service now rendered, and (2) that the evidence falls short of proving that public convenience and necessity requires its issuance. For these reasons objectors assert that the order of the Commission should be affirmed.
The legislative acts authorizing issuance by the State Corporation Commission of certificates of public convenience and necessity to common carriers by motor vehicle appear as Chapter 12, sec. 56-273, et seq., Code of 1950, and 1950 Cumulative Supplement thereto (Acts 1950, ch. 219, p. 368).
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