Tri-State Transit Co. of Louisiana, Inc. v. Dixie Greyhound Lines, Inc. , 197 Miss. 37 ( 1944 )

SPECIALLY CONCURRING OPINION. The contest in this case is over the route known as Highway 51, between Jackson and Memphis. The Tri-State Company has an intrastate as well as an interstate certificate on this route, while the Dixie Lines has an interstate certificate only. The Dixie Lines has both an intrastate and an interstate certificate between Jackson and Memphis over Highways 49 E. and 49 W. between Jackson and Clarksdale, connecting there with Highway 61 to Memphis. The application here is by the Dixie Lines for an intrastate certificate over Highway 51, so that if granted, two lines would be operating intrastate as well as interstate between Jackson and Memphis over Highway 51, while only the Dixie Lines would be operating over the other route.

It is said by Dixie that it is undisputed that its busses running two a day each way between Jackson and Memphis over Highway 51 have each on an average from 10 to 12 vacant seats, and they say that it is undisputed that the busses of Tri-State on the same route are generally overcrowded, the aisles being filled with passengers standing over tiresome distances, and they say that in view of this condition it would be to the convenience of the public, as well as a saving in the transportation service, that they should be permitted to open their doors to fill up their vacant seats, thus relieving the pressure of passengers upon Tri-State.

It is equally undisputed that the overcrowding of the busses exists to the same extent on the routes of the Dixie Lines over Highways 49 and 61, and it was well within the province and discretion of the Public Service Commission to indicate to Dixie that instead of opening its doors to intrastate passengers on Highway 51 in order to fill its busses, one of its busses each way should be transferred to the other route, so that there the vacant seats will be filled, and thereby taking care of its own route, instead of seeking to interfere in taking care of Tri-State's route. And particularly so in view of the admitted fact that to open Dixie to local passengers on Highway 51 would add not less than an hour to the Dixie schedule between Jackson and Memphis.

And the Commission could well anticipate or prevision as a practical certainty that if Dixie's doors were opened there would be the same rush of local passengers to get on its busses as is the case in regard to Tri-State busses, everybody wanting to take the first bus that comes along, with the result that as many would be standing in the aisles on Dixie busses as is the case on Tri-State busses, to say nothing of the public confusion that would be caused by two local passenger bus lines on the same route, and when the complaints would come the Commission would have difficulty in determining upon which of the two competing lines to place it. The Commission, on denying Dixie's application, was acting in accord with what experience has shown to be best, namely, that so far as local traffic is concerned, to permit only one carrier on each route, and to see to it that the carrier adequately serves the public, as to which the Commission has full power. When the Commission is acting as it has acted here, within the scope of its mature and reasonable discretion, the judicial courts should not undertake to interfere or assume to direct how the state's motor carrier lines shall be operated. The law in such cases the court may pronounce and order enforcement, but the supervision of the operation of these lines is with the Commission.

What has been said is of some of the reasons which sustain the action of the Public Service Commission in denying the application for an additional local certificate, and on the assumption that the courts have the authority to review an order of the Commission denying or refusing to grant such a certificate. When a competitive certificate has been granted the order is reviewable, Dixie Greyhound Lines v. Mississippi Public Service Comm., 190 Miss. 704, 200 So. 579, 1 So.2d 489. But otherwise than under the so-called grandfather clause, is an order denying a certificate subject to judicial review? The granting of a certificate of public necessity and convenience is legislative in its nature, unless made mandatory under facts standardized by the legislature. In the absence of specific standardized facts, may the legislature impose or confer on a judicial court the authority to issue a certificate to a motor carrier prospective in its character, and if it could not do so directly, may it do so indirectly by the allowance of an appeal from an order of the Commission which has refused to grant the certificate?

This question was not raised by the parties, and has not been considered for decision by the court, the decision being placed on the merits, and this additional opinion is filed so that it may not be assumed that because the court has passed on the merits in the case it has impliedly held that the order is one which the court must review.