Superior Forwarding Co. v. Southwestern Transp. Co.

• Decision Date: 18 February 1963
• Docket Number: No. 5-2866,5-2866
• Citation: 364 S.W.2d 785,236 Ark. 145
• Parties: , 48 P.U.R.3d 50 SUPERIOR FORWARDING COMPANY, Inc., Appellant, v. SOUTHWESTERN TRANSPORTATION COMPANY et al., Appellees.
• Court: Arkansas Supreme Court

Page 785

364 S.W.2d 785

236 Ark. 145, 48 P.U.R.3d 50

SUPERIOR FORWARDING COMPANY, Inc., Appellant, v. SOUTHWESTERN TRANSPORTATION COMPANY et al., Appellees.

No. 5-2866.

Supreme Court of Arkansas.

Feb. 18, 1963.

LaTourette & Rebman, G. F. Gunn, Jr., St. Louis, Mo., House, Holmes, Butler & Jewell, Little Rock, for appellant.

Louis Tarlowski, Little Rock, Lloyd M. Roach, Tyler, Tex., for appellees.

ROBINSON, Justice.

Appellant, Superior Forwarding Company, a common carrier operating trucks over highways in this State, petitioned the Arkansas Commerce Commission for authority to operate over four specific routes as follows:

No. 1. Between Jonesboro and Little Rock.

No. 2. Between Jonesboro and Stuttgart.

No. 3. Between Corning and Harrisburg.

No. 4. Between Little Rock and West Memphis.

Appellees, other carriers operating in the territory involved, protested the granting of such authority. The Commission granted the petition in part. Appellant was authorized to operate between Harrisburg and Jonesboro, and between Jonesboro and Hoxie. The remainder of the petition was denied.

East Texas Motor Freight Lines has authority to operate intrastate between Little Rock and the Missouri line, through Hoxie. Previously, with approval of the Commission, this permit had been leased to Superior. By reason of this leasing arrangement with East Texas Motor Freight, Superior had authority to operate between Little Rock and Hoxie. The Commission, therefore, did not give consideration to Superior's petition to operate between those points, and so stated in its order. Since 1959 Superior had been authorized to operate between Little Rock, Hot Springs, Malvern, Pine Bluff, and intermediate points.

There is a practice in the transportation business known as 'tacking'. This consists in transportation companies combining rights granted by separate permits so as to enable the carrier to furnish through service to points it is authorized to serve by the separate permits. In other words, by tacking its authority to haul from Harrisburg to Jonesboro, and its authority to haul from Jonesboro to Hoxie, and the authority it had under the lease from East Texas Motor Freight to haul from Hoxie to Little Rock, along with its authority to serve Hot Springs, Pine Bluff, etc., it could furnish straight through service between all those points. That is what happened here, and that is what this appeal involves.

The order of the Commission did not prohibit tacking and therefore, apparently everyone concerned considered that the authority granted to Superior did authorize the carrier to tack, and that Superior intended to do so. In their brief, appellees, the protesting carriers, state: 'Tacking together separate grants of operating authority enables a motor carrier to furnish a through service, if there be a point common to the separate authorities and operations are conducted through a common point, where the certificates contain no restrictions against tacking. Appellant admitted it proposed a tacking of routes, if its application was granted.' (Emphasis ours.) Again appellees state: 'In the absence of the Court directed restriction against tacking, appellant would be permitted to operate a through service * * *.' Appellees further state: 'Arbitrarily, it [the Commission] refused, in spite of these findings, to specifically prohibit joinder or tacking, thereby granting authority for a through service, * * *.'

Realizing that Superior would be able to tack since that procedure had not been prohibited by the Commission, appellees herein filed a petition with the Commission for a rehearing on that point and asked that Superior be denied the right to tack. The Commission overruled the petition, and by denying appellees' motion to amend the original order by inserting a provision prohibiting tacking, the Commission made it clear that the authority granted to Superior allowed tacking. Appellees here, appealed to the Circuit Court. There, the matter was heard by the Court on the record made before the Commission and the order of the Commission denying the petition to prohibit tacking by Superior was reversed. Superior has appealed to this Court.

The practice of tacking is manifestly so reasonable and beneficial to the public that it should not be prohibited except in the most compelling circumstances, and such circumstances are not shown to exist here. Ordinarily, it would be useless and utterly ridiculous to require Superior to unload at Jonesboro, freight originating at Harrisburg, and load it on another truck to make the trip to Hoxie, and then unload it again and reload it for the trip to Little Rock, when Superior has authority to operate between all the points mentioned. Of course, it would actually cost a great deal more to handle freight in that manner, and the shipper or consignee would eventually pay the bill.

But, if by tacking Superior would be able to furnish such competition that in the long run it would not be in the public interest, tacking should be prohibited; mere competition in itself, however, is no sound reason to deny the public the additional service. Atlanta-New Orleans Motor Freight Co. v. United States, D.C., 197 F.Supp. 364 (1961). In that case the Court quoted from Norfolk Southern Bus Corp. v. United States, D.C., 96 F.Supp. 756, as follows: 'Competition among public carriers may be in the public interest and the carrier first in business has no immunity against future competition. [Citations omitted]. Even though the resulting competition causes a decrease of revenue from one of the carriers, the public convenience and necessity may be served by the issuance of a certificate to a new competitor.'

Appellees offered no evidence in support of their motion that Superior be denied the right to tack. Their principal argument is that the record shows that the Commission denied Superior the authority to haul straight through because adequate service of that kind was being rendered by appellees. But by tacking, Superior could do the very thing the Commission denied it the right to do. Appellees stated in their brief: '* * * the Arkansas Commerce Commission has specifically found that the public convenience and necessity does not require any service from Jonesboro to Little Rock, and other points served by the appellees, because appellees are adequately and satisfactorily serving the public, * * *.'

We do not construe the findings and order of the Commission as denying Superior the right to furnish through service; and neither did the Commission so construe its order, as evidenced by the fact that appellees' petition to prohibit tacking was denied by the Commission. As we construe the order of the Commission, tacking was anticipated, and the denial of that part of appellant's original petition for authority to haul from Hoxie to Little Rock was due to the fact that Superior already had that authority and would be permitted to tack. In this respect the Commission said: 'For practical purposes, applicant holds interstate authority over substantially all of the routes embraced in this application. Vehicles are stationed at all terminals for road and pickup and delivery service. If this application is granted, it is proposed to give overnight delivery service to all points in Arkansas.' The Commission further said: 'The record is clear that motor carrier service between Corning, Pocahontas, Newport, Jonesboro and Harrisburg is inadequate to meet the need of present shippers, not to mention the plans of such shippers for expansion of their business. Inasmuch as applicant is presently operating in intrastate commerce between Little Rock and the ...