Missouri Pacific Transportation Co. v. Gray , 205 Ark. 62 ( 1943 )

The Arkansas Corporation Commission, after protracted hearings, one of which was held in the territory affected, found that public necessity and convenience required the additional service which the appellee, Gray, offered and was financially able to provide. It was established by the undisputed testimony that, under conditions existing when the appellee made application for the permit under review here, citizens of Hampton and other important towns in Calhoun county were unable to make the trip to Little Rock and return without spending the night away from home, and likewise the round trip from Little Rock to and from any of those communities required two days. The circuit court reviewed this testimony and upheld the finding of the Corporation Commission.

While, under the provisions of our statute, the Supreme Court tries a case of this kind de novo, there is nothing in the statute that prevents this court from according to the finding of the circuit court and to that of the Corporation Commission the presumption of correctness to which the decision of any duly constituted fact finding tribunal is entitled. Under our law and practice, all cases appealed from chancery court are tried de novo in the Supreme Court, but the rule universally adhered to is that the finding of the chancellor on a question of fact will not be disturbed on appeal unless it is against the clear weight of the testimony.

It is generally held that the finding of fact made by a body such as the Corporation Commission should not be set aside unless such finding is against the weight of the testimony. The rule is thus stated in 9 Am.Jur. 494: "There are manifestly practical reasons for giving peculiar weight to the finding of a commission, for such a body from the nature of its organization and the duties imposed upon it by statute is peculiarly competent to pass upon questions of fact of the character arising in the determination of questions relating to the reasonableness of rates and regulations. In fact, the commission's findings are in case of conflict of testimony entitled to a probative force upon a consideration of the case on appeal to the courts, for the commission, in addition to knowledge of conditions of environment and of transportation relations, has had the advantage of the presence of the witnesses before it." In 51 C.J., p. 77, it is said: "The question is not whether there is a scintilla of evidence to support the order, but whether it is reasonably supported by all the evidence; but the order should not be disturbed unless so manifestly against the weight of the evidence or so clearly unsupported by it as to show mistake or wilful disregard of duty." This principle was recognized and upheld by the Supreme Court of the United States in the following cases: East Tennessee, Virginia Georgia Railway Company, et al., v. Interstate Commerce Commission, 181 U.S. 1; Louisville Nashville Railroad Company, et al., v. Behlmer, 175 U.S. 648, and Illinois Central Railroad Company v. Interstate Commerce Commission, 206 U.S. 441. Applying this rule in a consideration of the evidence in this case, it can not be said, in my opinion, that the finding of the Corporation Commission and of the circuit court is against the weight of the testimony. It is not disputed that, under the service proposed by the appellee, and covered by the permit issued to him, the people of a large territory will obtain needed transportation facilities not previously enjoyed by them and persons desiring to travel between El Dorado and Little Rock will have the advantage of an additional and convenient service. The principal complaint of the appellant is that, by reason of the service to be given by the appellee under this permit, some of its passenger traffic from El Dorado to Little Rock and from Little Rock to El Dorado may be diverted, but, as shown by the testimony offered by the appellant, the through traffic carried by the appellant between these two points is so small that the appellant could not be seriously injured by diversion of any part of such traffic. It is also urged by appellant that, in order to operate this bus line, it has made a large investment, which might be jeopardized by the proposed competition, but virtually the only investment made by it is the amount it has expended for buses, the value of which would, of course, not be destroyed if it ceased entirely its operations over this particular route. The appellant's position in this matter is not comparable to that of a railroad company, which must expend large sums for right-of-way, tracks, switches and depots, in addition to the amount necessary to procure rolling stock. The appellant does not have any proprietary interest in the public highways over which it and appellee are operating their buses. These highways were built at great cost by the public, are owned by the public and are maintained by the state for public convenience. In effect, this court is asked to give appellant a monopoly in the use of these publicly owned and maintained highways. There is no constitutional or statutory authority for such a monopoly. On the contrary, it is provided by article II, 19, of the Constitution of this state: "Perpetuities and monopolies are contrary to the genius of a republic and shall not be allowed." The legislature, in authorizing the granting of licenses for motor bus carriers, provided (subdivision c, 2025 of Pope's Digest): "Nor shall any such license, in any event, be exclusive." The Motor Bus Act enacted by the General Assembly of 1941 (Acts of 1941, page 937) contains this restriction (subdivision d, 9): "No certificate issued under this act shall confer any proprietary or property rights in the use of the public highways." Justice HART, speaking for the court, in the case of Kinder v. Looney, 171 Ark. 16, 283 S.W. 9, said: "If the commission may limit the number (of buses), it must act in a reasonable manner and upon evidence. It must determine the question with justice and fairness to the public, as well as to the public service corporations. It cannot restrict the number of certificates of public convenience and necessity issued to companies over a given route without reasonable evidence tending to show that such restriction would result in a benefit to the public." While it might be properly held, under certain conditions, that the public interest and convenience would be better served by denying the application of a competing carrier for license to traverse highways already served by existing facilities, no such situation is here presented.

For these reasons, I must dissent from the opinion of the majority in this case.