Sunshine Bus Lines v. Railroad Commission, 9104.

• Decision Date: 12 March 1941
• Docket Number: No. 9104.,9104.
• Citation: 149 S.W.2d 228
• Parties: SUNSHINE BUS LINES, Inc., v. RAILROAD COMMISSION et al.
• Court: Texas Court of Appeals

149 S.W.2d 228

SUNSHINE BUS LINES, Inc., v. RAILROAD COMMISSION et al.

No. 9104.

Court of Civil Appeals of Texas. Austin.

March 12, 1941.

Rehearing Denied April 2, 1941.

Appeal from District Court, Travis County; Ralph W. Yarbrough, Judge.

Proceeding between Sunshine Bus Lines, Incorporated, and H. A. Wimpee, who by order of the Railroad Commission of Texas was granted a certificate to operate a motor bus from Dallas to Van and return. From a judgment affirming the order of the Railroad Commission, Sunshine Bus Lines, Incorporated, appeals.

Judgment affirmed.

Everett L. Looney, of Austin, and Barnes & McElroy, of Terrell, for appellant.

Carl L. Phinney, of Dallas, Carlisle & Henry, of Kaufman, and Wheeler & Wheeler, of Austin, for appellee H. A. Wimpee.

Gerald C. Mann., Atty. Gen., and Geo. W. Barcus and Glenn R. Lewis, Asst. Attys. Gen., for appellee Railroad Commission.

BLAIR, Justice.

This litigation arose as an appeal under the Motor Carrier Act (Art. 911a, Sec. 17, Vernon's Ann.Civ.St.) from the order of the Railroad Commission granting appellee, H. A. Wimpee, a certificate to operate a motor bus service from Dallas to Van via Seagoville, Crandall, Gastonia, Kaufman, Ola, Cedarvale, and Canton, and return to Dallas over the same route. Appellant, Sunshine Bus Line, Inc., the operator of a bus service over the portion of the proposed route between Kaufman and Seagoville, unsuccessfully sought in the trial court and here seeks to have the order granting the certificate declared invalid upon the following grounds or points:

1. Because in granting the certificate and in executing the order complained of, the Commission "did not act as a collective body, did not hold a meeting, but acted as individuals only; Commissioners Sadler and Smith purportedly executed said order and said certificate, but not as a result of any meeting, but separately and as individuals, at different times and at different places, Commissioner Sadler affixing his signature to same at Austin, the seat of government, and Commissioner Smith not affixing his signature at all, but to the contrary, his signature was affixed thereto in the office of the Railroad Commission at Austin by his private secretary, Mrs. Perie Stevenson, when he was absent from said office and out of Austin."

2. Because the order "did not result from a regularly scheduled or called meeting of the Railroad Commission, but was held at Marlin, Texas attended only by Commissioners Smith and Sadler, of which purported meeting Commissioner Thompson did not have notice, he did not attend."

3. "Because the testimony before the Commission failed wholly to show that the public necessity existed for the service proposed by appellee Wimpee, and it wholly failed to show that the existing service over such route was inadequate."

Neither of these contentions is sustained.

The application for the permit was filed January 24, 1940, and was set for and a hearing held at Kaufman on February 20th and 21st, 1940, before the duly appointed examiner of the Commissioner. The testimony taken at this hearing was reduced to writing in question and answer form by the official reporter of the Commission, which was completed on March 16, 1940, and was through the proper officials of the Commission delivered to Commissioner Sadler on that date. Commissioner Sadler testified that Commissioner Smith became ill about the middle of February, 1940, and was confined to his home in Austin and in a hospital at Marlin for several months, during which time he did not come to his office in Austin; that Commissioner Thompson was absent from his office most of the time of the consideration of the application in question, and from those in his office witness was unable to obtain any information as to his whereabouts; and that for this reason he was compelled to confer with Commissioner Smith either at his home or in Marlin about all matters coming before the Commission; that upon receipt of the transcript of the testimony in the instant case he read it, and on the following day took it to the hospital at Marlin; that prior to that time he and Commissioner Smith had discussed the application at least twice; that on March 17, 1940, he took the matter up with Commissioner Smith at the hospital in Marlin, discussed the testimony with him at length, Smith not reading it because of illness; that on that occasion he and Commissioner Smith went fully into the matter together and mutually agreed and determined to grant the application for the certificate; and that on this occasion and all occasions during the illness of Commissioner Smith, they transacted the business of the Commission in the same manner in those places as they would have done in the offices of the Commission in Austin, or elsewhere.

Commissioner Sadler further testified that upon returning to Austin he caused the order to be prepared granting the certificate to appelle...