Tamiami Trail Tours, Inc. v. Georgia Public Service Commission

• Citation: 99 S.E.2d 225,213 Ga. 418
• Decision Date: 12 June 1957
• Docket Number: 19690,Nos. 19689,s. 19689
• Parties: TAMIAMI TRAIL TOURS, Inc. v. GEORGIA PUBLIC SERVICE COMMISSION et al. The GREYHOUND CORPORATION v. Matt L. McWHORTER et al., Commissioners, et al.
• Court: Supreme Court of Georgia

Page 225

99 S.E.2d 225

213 Ga. 418

TAMIAMI TRAIL TOURS, Inc. v. GEORGIA PUBLIC SERVICE COMMISSION et al.

The GREYHOUND CORPORATION v. Matt L. McWHORTER et al., Commissioners, et al.

Nos. 19689, 19690.

Supreme Court of Georgia.

June 12, 1957.

Rehearing Denied July 5, 1957.

Syllabus by the Court

1. It is within the discretion of the Public Service Commission to authorize a transfer of a certificate of public convenience and necessity so long as such certificate is valid and outstanding and the right to operate thereunder has not been revoked.

2. Under Code Ann.Supp. § 68-609, which provides that no certificate shall be granted over the route of an existing certificate holder unless the service is inadequate and until the existing certificate holder is given reasonable time and opportunity to remedy any inadequacies, the word 'route' means the particular highway or road or series of highways or roads over which a carrier is authorized to operate. Where an application is for a certificate over a new route, none of which is over the route of an existing certificate holder, the notice and opportunity provided by this Code section is not required to be given before the issuance of such certificate.

3. The new certificates granted to the applicant authorize service over a new route and additional service at Griffin and Barnesville, which additional service the evidence shows the public interest does not require. In view of the total lack of evidence to support the granting of the certificates including service at Griffin and Barnesville, the Commission erred in granting the applications for new service.

4. Upon a hearing by the Public Service Commission on an application for a certificate of public convenience and necessity, the mere introduction before that body of ex parte affidavits does not invalidate the order of the Commission.

Under a certificate of public convenience and necessity issued by the Georgia Public Service Commission, Atlantic Stages, Inc., operates a public passenger bus service between Savannah and Macon via Pembroke, Claxton, Reidsville, Lyons, Vidalia, Soperton, Dublin, Irwinton and Gordon. In an effort to obtain a route from Savannah to Atlanta, Atlantic Stages applied to the Commission for a transfer to it of a certificate held by Southeastern Motor Lines, Inc., covering a route between Macon and Barnesville via Culloden, for a certificate to operate between Barnesville and Griffin via State Highway No. 36 and a county road known as High Falls Road, and for a certificate from Griffin into Atlanta via Experiment, Woolsey, Inman and Fayetteville. Shortly before the date set for the hearing on these three applications, the Greyhound Corporation filed a complaint with the Commission asking that Southeastern's certificate be revoked on the ground that the authority thereby conferred had been abandoned. This complaint was consolidated with the issues as to Atlantic's applications. After hearings, the Commission granted the three applications of Atlantic Stages, approving the transfer of the certificate from Southeastern Motor Lines, and issuing new certificates of public convenience and necessity to operate between Barnesville and Griffin and between Griffin and Atlanta. Greyhound's request to cancel the certificate of Southeastern Motor Lines was denied. Greyhound filed a petition in Fulton Superior Court against the members of the Commission, Atlantic Stages, Inc., and Southeastern Motor Lines seeking an injunction against the transfer of the certificate and the issuance of the new certificates. Tamiami Trail Tours, Inc., also filed a petition against the same defendants seeking to enjoin the issuance of the new certificates. The trial judge, after hearing evidence, denied the prayers of each petition and dissolved a previously issued temporary restraining order. To this judgment Tamiami Trail Tours, Inc. (in case No. 19689) and Greyhound Corporation (in case No. 19690) except. Tamiami's exceptions are confined to so much of the order of the Commission as authorized a new certificate to operate between Griffin, Fayetteville and Atlanta. Greyhound excepts to the order in the same respect and also to the order transferring the certificate of Southeastern Motor Lines to Atlantic, and to the issuance of a new certificate to operate between Barnesville and Griffin. The numerous objections of the plaintiffs in error to the order of the trial court, which affirmed the action of the Commission, resolve themselves into the following contentions:

1. That the certificate of Southeastern Motor Lines was dormant and could not be transferred; the evidence demanded that said certificate be canceled; said certificate had been abandoned and it was necessary that Atlantic prove that public convenience and necessity required its revival and transfer.

2. That under the second paragraph of Code Ann.Supp. § 68-609, the evidence was insufficient to show that the public convenience and necessity over the route involved was not being adequately served, and no opportunity was given to existing carriers on such route to remedy any inadequacies if such existed.

3. That under Code Ann.Supp. § 68-609, the Commission, in determining whether a new certificate should be granted, must consider five matters specified therein, and the evidence before the Commission was insufficient to support Atlantic's requests and to support the action of the Commission in granting the certificates, so far as the five matters set out in this section are concerned.

4. That affidavits offered by Atlantic were illegally admitted and considered by the Commission.

5. That financial statements of Atlantic Stages and of a stockholder of Southern Stages, Inc., which corporation owns the stock of Atlantic, were erroneously admitted in evidence by the Commission.

6. That the answer of the Public Service Commission to the equitable suits of the plaintiffs in error was erroneously admitted in evidence in the hearing before the superior court.

Tamiami Trail Tours, Inc., excepts to the introduction in evidence before the superior court of the testimony adduced before the Commission in the hearing of March 27, on the grounds that it was not represented at said hearing and that the Commission, at the hearings on June 7, 19, and 20, did not consider this transcript in evidence.

Wilson, Branch & Barwick, John E. Branch, and John W. Wilcox, Jr., Atlanta, for plaintiff in error, Tamiami Trail Tours, Inc.

Gambrell, Harlan, Russell, Moye & Richardson, Theodore M. Forbes, Jr., and Robert R. Richardson, Atlanta, for plaintiff in error, Greyhound Corp.

Eugene Cook, Atty. Gen., Robert Hall, and E. Freeman Leverett, Asst. Attys. Gen., Guy Postell, Reuben Crimm, Atlanta, T. Baldwin Martin, Sp. Deputy Asst. Atty. Gen., and Martin, Snow & Grant, Macon, for defendants in error.

MOBLEY, Justice.

1. The plaintiffs in error contend that the Commission was without authority to transfer the certificate of Southeastern Motor Lines authorizing it to operate between Macon and Barnesville, to Atlantic Stages. In 1950, Southeastern leased its rights under the certificate to Miller Bus Line. Miller's rights to operate under the certificate were suspended by the Commission in 1952. In January, 1956, Miller having voluntarily relinquished any rights he may have had to the certificate, the Commission reinstated and reissued the certificate to Southeastern. The Commission is authorized, for reasonable cause and after notice and opportunity to be heard, to suspend, revoke, alter or amend a certificate when, in its opinion, the holder thereof is not furnishing adequate service. Code, § 68-607. By reason of this authority and for failure to comply with the regulations of the Commission, Miller's right to operate was suspended. The Commission had authority to revoke the certificate, but it did not do so. We are of the opinion that so long as the certificate remained unrevoked, the Commission could authorize its transfer. The question of public convenience and necessity having been determined by the Commission at the time the certificate was issued, the Commission would not be required on an application for transfer to consider that question again before granting a transfer of the certificate.

2. Code Ann.Supp. § 68-609 provides that 'No certificate or authority shall be granted to an applicant proposing to operate over the route of any holder of a certificate or authority when the public convenience and necessity with respect to such route is being adequately served by such certificate or authority holder; and no certificate or authority shall be granted to an applicant proposing to operate over the route of any holder of a certificate or authority unless and until it shall be proved to the satisfaction of the Commission that the service rendered by such certificate or authority holder, over the said route, is inadequate to the public needs; and if the Commission shall be of opinion that the service rendered by such certificate or authority holder over the said route is in any respect inadequate to the public needs, such certificate or authority holder shall be given reasonable time and opportunity to remedy such inadequacy before any certificate or authority shall be granted to an applicant proposing to operate over such route.' The plaintiffs in error contend that they were not given the opportunity to remedy any existing inadequacy in service in this case as is required by this Code section, and in answer thereto Atlantic says that its proposed route is not over the route of either of them.

Greyhound's certificate authorizes it to operate from Macon to Atlanta over U. S. Highway 41, running through Forsyth, Barnesville, Griffin and Jonesboro. Atlantic's application is for a certificate from Macon to Atlanta over several State highways and one rural road, none of which traverses U. S. 41 except to intersect it in Barnesville and Griffin. Tamiami operates...