South Miss. Airways v. Chicago & Southern Airlines

• Decision Date: 27 May 1946
• Docket Number: 36013.
• Court: Mississippi Supreme Court
• Parties: SOUTH MISSISSIPPI AIRWAYS et al. v. CHICAGO & SOUTHERN AIRLINES et al.

26 So.2d 455

200 Miss. 329

SOUTH MISSISSIPPI AIRWAYS et al. v. CHICAGO & SOUTHERN AIRLINES et al.

No. 36013.

Supreme Court of Mississippi

May 27, 1946

Reese O. Bickerstaff, of Gulfport, and John H Holloman, of Columbus, for appellants.

Stevens & Stevens, May & Byrd, Chambers & Trenholm, and W. Percy McDonald, all of Jackson, for appellees.

L. A SMITH, Sr., Justice.

Three seprate applications were filed respectively by South Mississippi Airways, Magnolia State Airways and Cox Airways with the Public Service Commission, seeking certificates of public convenience and necessity for the operation of airlines along certain designated wholly intrastate air routes. Protests were filed by appellees. Without objection these applications were consolidated for the purpose of consideration by the Public Service Commission. By the protestants, it was variously urged that there is no Mississippi statute conferring authority upon the Commission to issue such certificates to a common carrier by air; that the State law does not give the Commission any authority over airlines, and applicants cannot operate even if such certificate can be and be granted until such operation has been authorized by the Civil Aeronautics Board created by Congress, Title 49, Sec. 241, U.S.C.A., which applicants had not secured as required by said Act; that similar service is proposed to be rendered by some of said protestants, delayed by war restrictions, which had already previously applied to the United States Civil Aeronautics Board for a certificate of public convenience and necessity, and with which applicants intended to compete; and that the Public Service Commission was without jurisdiction in the premises.

The Public Service Commission, however, heard the applications and protests, and granted the certificates, which, appellees here contend, substantially cover a large portion of the entire State. Appellees, as authorized by statute, appealed to the Circuit Court of the First District of Hinds County, where the order of the Public Service Commission was vacated,--that court holding the Commission was without jurisdiction to grant the certificate sought, and dismissed the applications. The application of Cox Airways seems to have been separately dismissed in the circuit court and they are not appealing. From the judgment of the circuit court, the two appellants here, South Mississippi Airways and Magnolia State Airways, appealed.

Four errors are assigned for our adjudication. They are: (1) The trial court erred in sustaining motion to dismiss the applications; (2) it erred in holding that the Public Service Commission was without jurisdiction to consider them and grant thereon certificates of public necessity and convenience, being in effect, they say, permits or franchises to operate the business of common carriers of passengers, freight, and express in intrastate commerce by air in Mississippi; (3) the trial court erred also in holding the certificates of public necessity and convenience issued appellants by the Commission were void; (4) and that the court erred in holding that protestants had the right to challenge the order of the Commission, from which they appealed to the circuit court, or that they had such a right as qualified them to appear and contest the applications, since, they say appellees were not, have not been, and could not be injured by the action of the Public Service Commission in awarding appellants the certificates.

Before filing their applications for the certificates, appellants obtained a written opinion from the office of the Attorney General that 'the Public Service Commission, which by law has supervision of all common carriers in the State of Mississippi, has the implied authority to issue a certificate of public convenience and necessity to intrastate airlines transporting passengers and property by aircraft, and that such authority is given to the Commission by virtue of Chapter 142 of the Laws of 1938, and particularly Section 3, Subsections (c) and (d). It is true that no act specifically authorizes such to be done, but from the definitions used in the above cited act and the jurisdictions of the Mississippi Public Service Commission, there is an implied authority given it to issue such certificates.'

Chapter 142, Laws 1938, may be cited as the 'Mississippi Motor Carrier Regulatory Act, 1938', and is now Chapter 4, Title 28, entitled Common Carriers, Code 1942. Section 3, Subsections (c) and (d) of Chapter 142, Laws 1938, are in the Code of 1942, as Section 7634, Subsections (c) and (d), which are the same in the Code as in the Act. They read as follows:

'(c) The term 'highway' means every public highway or place of whatever naturn open to the use of the public for purposes of vehicle travel in this State, including the streets and alleys in towns and cities.'

'(d) The term 'motor vehicle' means any vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used upon the highways in the transportation of passengers or property, but does not include any vehicle, locomotive or car operated exclusively on a rail or rails.'

Section 186 of the Constitution of the State of Mississippi provides 'That legislature * * * shall enact laws for the supervision of railroads, express, telephone, telegraph, sleeping-car companies, and other common carriers in this state, by commission or otherwise * * *.'

Section 7639, Code 1942, requires that a certificate of public convenience and necessity shall be obtained from the Public Service Commission by all common carriers by motor vehicle, as follows: 'No common carrier by motor vehicle * * * shall engage in intrastate operation on any highway within the State unless there is in force with respect to such carrier, a certificate of public convenience and necessity issued by the Commission authorizing such operation * * *.'

Section 7640 governs the details of applications for such certificates, including information as to 'the public highway or highways over which, and the cities, towns or villages between which and the route or routes or the territory within which it proposes to operate'; and 'the kind of transportation, whether passenger or property, or both, together with a full and complete description of the character of the vehicle or vehicles to be used * * *.'

Appellants argue that air transport companies, such as they are, and some protestants, are common carriers, citing Curtiss-Wright Flying Service, Inc., v. Glose, 3 Cir., 1933, 66 F.2d 710, 712, certiorari denied, 290 U.S. 696, 54 S.Ct. 132, 78 L.Ed. 599, in which occurs the following language: 'What reason is there why the same principles applicable to land and water should not also be applied to air transportation? Terminal Taxicab Co. v. Kutz, 241 U.S. 252, 36 S.Ct. 583, 60 L.Ed. 984, Ann.Cas. 1916D, 765. All alike perform the same service, viz., transportation. They are competitors for the same class of business. Every passenger carried by airplane means a passenger less for the railroad or steamship. Transportation, as its derivation denotes, is a carrying across, and, whether the carrying be by rail, by water or by air, the purpose in view and the thing done are identical in result.' The same conclusion was reached in McCusker v. Curtiss-Wright Flying Service, Inc., 269 Ill.App. 502, quoting the New York Court in 1920, from Anderson v. Fidelity & Casualty Co., 228 N.Y. 475, 127 N.E. 584, 585, 9 A.L.R. 1544: 'To-day, as is practically conceded by counsel for both parties in the instant case, the term 'common carrier' should be applied to the 'jitney bus,' and tomorrow, in a proper case, it may well be that it may be applied to that most recent device for eliminating the fetters of distance, the aeroplane * * *.' We see no good reason why there cannot be common carriers by the use of airplanes.

It has been decided that an airplane comes within the term 'vehicle'. United States of America v. One Pitcairn Biplane, D.C., 11 F.Supp. 24. Appellees, to the contrary, cite Platt v. Erie County Agricultural Society, 164 A.D. 99, 149 N.Y.S. 520, quoted in part in English v. Miller, Tex.Civ.App., 43 S.W.2d 642, 644, wherein it is said: An airplane has been held not to be a 'motor vehicle' within the law relating to the transportation of a motor vehicle, knowing it to have been stolen, in interstate or foreign commerce. In McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816, the Court said: '* * * in every day speech 'vehicle' calls up the picture of a thing moving on land.' However, it also says: 'No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air * * *.'

The appellees do not take issue with appellants that airplanes may be common carriers, and are such under qualifying circumstances. It is their contention here that the question primarily before us for decision is one of the jurisdiction of the Public Service Commission to grant a certificate of public convenience and necessity to transport passengers or freight by aircraft common carriers. They contend that the statutes of this State have not yet taken cognizance of air transportation as common carriers, and have not extended statutory authority of the Commission to regulate the same, and no such authority was ever granted the Commission by the Legislature. Indeed, this question by the trial court was thus decided, 'and the said question of the jurisdiction of the said Commission having been submitted and argued to the Court, and the Court now being advised of its judgment, is of the opinion and finds thatr the Mississippi Public Service Commission is, and was at the date of the order entered herein, without jurisdiction to entertain petitions for...