Southeastern Greyhound Lines v. Dunlap

• Decision Date: 04 April 1942
• Citation: 160 S.W.2d 418,178 Tenn. 546
• Parties: SOUTHEASTERN GREYHOUND LINES v. DUNLAP et al.
• Court: Tennessee Supreme Court

160 S.W.2d 418

178 Tenn. 546

SOUTHEASTERN GREYHOUND LINES v. DUNLAP et al.

Supreme Court of Tennessee.

April 4, 1942

Appeal from Chancery Court, Davidson County; Wm. J. Wade Chancellor.

Petition for writs of certiorari and supersedeas by the Southeastern Greyhound Lines to set aside an order of Porter Dunlap chairman, and others, composing the Railway and Public Utilities Commission of Tennessee, and the Nashville-Franklin Railway to compel defendants to set aside an order directing the Nashville-Franklin Railway to substitute busses for electric trolley service between certain cities, and granting the Nashville-Franklin Railway the necessary certificate of necessity and convenience to make the substitution. From a decree denying the petition, the plaintiff appeals.

Decree affirmed.

W. M Fuqua, of Nashville, for complainant.

Lon P. McFarland, of Lebanon, and Thos. H. Peebles, Jr., of Columbia, for Porter Dunlap and others.

Hume, Howard, Davis & Gale, of Nashville, for Interurban Co.

PREWITT Special Justice.

This cause comes here on appeal by the Southeastern Greyhound Lines from a decree of the chancery court, part two, of Davidson County, in which the petition for writs of certiorari and supersedeas to set aside an order of the defendants Dunlap et al., composing the Railway and Public Utilities Commission of Tennessee, was denied. This order directed the defendant Nashville-Franklin Railway to substitute busses for the electric trolley service which it operated between Nashville and Franklin, and granted to the railway the necessary certificate of necessity and convenience to make this substitution. The certificate is from Nashville over U.S. Highway 31 to Franklin and thence beyond Franklin over an unnamed route to Hillsboro, Tennessee. The railway company has since 1909 owned and operated an electric railway between Nashville and Franklin, with its trolley track along or near to the Franklin Pike, Highway No. 31, and its cars upon reaching Nashville came up the street car tracks and made a loop through the city, going through the old transfer station. The extension of the certificate beyond Franklin to Hillsboro is not questioned in this proceeding, because neither the petitioner, Southeastern Greyhound Lines, nor the defendant railway, has ever maintained any passenger services to this village. The certificate granted in the same order by the commission to the Southeastern Greyhound Lines to operate over the Hillsboro Pike between Nashville and Franklin is not questioned.

The Southeastern Greyhound Lines hold a certificate from Nashville to Franklin over U.S. Highway No. 31 and from Nashville to Alabama State Line, via Franklin, Columbia, Mount Pleasant, and Lawrenceburg. The controversy arose when the railway company was faced with the necessity of discontinuing its passenger operations when the street car system of Nashville was ordered abandoned and it would thereafter have no way into Nashville with its trolley cars, and thereupon this proceeding followed, with the order above referred to being entered to substitute busses.

The petitioner Greyhound Lines protested before the commission and, when the order was entered, filed its petition for certiorari and supersedeas and this appeal, because it held a certificate from Nashville to Franklin on U.S. Highway No. 31. The petitioner took the position that no other certificate over this route could be legally granted unless and until it be given an opportunity to handle this business of about one hundred and fifty thousand passengers annually which would have to be handled by bus after the Nashville-Franklin Railway operation stopped.

The railway commenced its operations in 1909, carrying passengers between Nashville and Franklin and intermediate points, and has maintained this service continuously with approximately twenty-four trips per day during said period of about thirty-two years. In 1924, the predecessors in interest of the Southeastern Greyhound Lines commenced operations from Nashville to points south, going through Franklin on the Franklin Pike to the Alabama State Line. It seems that none of these busses are or ever have been local busses to Franklin.

On September 30, 1929, a certificate of convenience and necessity was issued to the Union Transfer Company, the predecessor in interest of the Southeastern Greyhound Lines. The Nashville-Franklin Railway protested the issuance of this certificate and urged that it be limited so as to require the certificate holder to operate with closed doors between Nashville and Franklin, but no such provision was inserted in the certificate.

It is conceded that this certificate of convenience and necessity constitutes a grant of a franchise right by the State, acting through the railway and public utilities commission, and the question before the Court is, just what rights the Greyhound Lines have under this franchise. It is not urged here by counsel for the Greyhound Lines that the petitioner has been granted an absolute right to institute a specialized local service to Franklin, but, rather, it is the contention of the Greyhound Lines that under Section 10 of the Tennessee Motor Vehicle Regulatory Act and Amendment of 1933, the Greyhound Lines have the right to be given the opportunity of serving this territory without competition. Said section provides as follows:

"Sec. 10. No motor carrier authorized under the provisions of this Act to operate between points within this State shall abandon or discontinue any service established under the provisions of this Act without an order of the Commission therefor, which said order shall be granted by the Commission only after hearing upon due notice; providing, however, the Commission may, as an emergency measure and without hearing, authorize the abandonment or discontinuance of any service for periods of not more than fifteen days, by reason of physical condition of the highways or other sufficient reason.

"The Commission may at any time, for good cause, suspend any certificate of convenience and necessity, interstate permit or contract haulers permit; and, upon ten days' notice to the holder of any certificate of convenience and necessity, interstate permit or contract hauler's permit and after an opportunity to be heard, said Commission may for proper cause revoke, alter or amend any certificate of convenience and necessity, interstate permit or contract hauler's permit issued under the provisions of this Act. Provided, that on finding of the Commission that any motor carriers operating between points within this State does not give convenient efficient service in accordance with the orders of the Commission, such motor carrier shall be given a reasonable time, not more than sixty days, to provide such service before any existing certificate is cancelled or revoked or a new certificate granted to some other motor carrier over the same route or routes."

It is insisted by the commission and also by the railway company that this section was intended only in cases where it appeared to be necessary to take steps to cancel the right given the holder of a franchise and provide the method for so doing.

It cannot be said that the State, acting through the railroad and public utilities commission, had in mind the granting to any person, firm, or corporation, the exclusive right...