Farnum v. Public Utilities Commission , 52 R.I. 128 ( 1932 )

This is an appeal from the refusal by the Public Utilities Commission of Rhode Island to grant appellant a certificate authorizing him to operate motor vehicles known as jitneys to and from a privately owned terminal on Long Wharf in the City of Newport and along that portion of an interstate route between Newport and Boston, Massachusetts, as lies within this State.

It appears that the respondent commission has offered to grant a certificate to operate but has denied the terminal and modified the route specified, on the alleged ground that the use of such terminal and route would augment the present congestion of traffic in Newport and would conflict with their previous ruling that no interstate busses be allowed to operate south of the corner of Mann avenue and Broadway, in Newport. The certificate offered to but refused by appellant designates said corner as the terminal for his busses.

The extent to which a State may regulate and control within its borders carriers engaged in interstate commerce is stated by the United States Supreme Court in Sioux Remedy Co. v. Cope,235 U.S. 197, at 201, in the following language: "A State, while possessing power to adopt reasonable measures to promote and protect the health, safety, morals and welfare of its people, even though interstate commerce be incidentally or indirectly affected, has no power . . . by the imposition of conditions to fetter their right to carry on such commerce, or to subject them . . . to requirements which are unreasonable or pass beyond the bounds of suitable local protection. . . . If it were otherwise, the purpose of the Constitution to secure and maintain the freedom of commerce by whomsoever conducted could be largely thwarted by the States and the commerce itself seriously crippled."

The question in this case is whether the facts brought out in the evidence regarding traffic conditions render the action of the commission necessary for "suitable local protection."

To determine the traffic situation, upon which the decision of the commission was largely based, it is necessary to examine the character of the highways over which appellant desires to pass to and from the terminal requested. From the plats on file it appears that Broadway, the main thoroughfare from said State line into Newport, along which appellant's busses would travel, is a wide highway. Mann avenue. whose intersection with Broadway forms the corner designated by the commission for appellant's terminal, is a side street about a quarter of a mile from the beginning of the business district, at Washington Square. Washington Square is extremely wide, varying from 62 to 118 feet between curbs, and is a continuation of Broadway. At certain parts of both these streets the width is so great that automobiles are permitted to park at angles to the curb. At the intersection of Washington Square and Thames street, a narrow, main thoroughfare, traffic is controlled by a signal light. Long Wharf, the way on which appellant proposes to locate his terminal, is a combined street and wharf leading out of this intersection, and is not a regular, main highway. Lastly, the property chosen for said terminal is privately owned.

In my opinion such a condition does not offer adequate grounds for the decision of the commission. Appellant wishes to traverse main thoroughfares of ample width. Along Thames street, the only narrow highway, he does not ask to travel but only to cross, and this crossing, directed by signal, should not offer any traffic complication. There is nothing apparent in the traffic conditions of either Long Wharf, the Thames street intersection, Washington Square or Broadway which would render burdensome the inclusion of approximately two Pierce Arrow limousines every two hours. To deprive appellant of a terminal on private property on a side street and of a route which appears in every way reasonable passes beyond the bounds of "suitable local protection."

The ruling of the commission requiring appellant, as well as all other bus companies, to operate their lines at or north of Mann avenue and Broadway does not seem necessary according to the above-described traffic conditions. To designate for a terminal property so far from the business center of the city and to forbid the operation of interstate busses any nearer the center than said terminal seems unnecessary and impractical. The size of the City of Newport cannot require a proscription of public service corporations which is not requisite in cities greater in size and infinitely more congested as to traffic. To remove a line whose business is the transportation of passengers so far from those sections most frequented by potential customers is to prevent appellant from conducting his business with any probability of success. The fact that streets are occasionally congested by traffic should offer no substantial reason for compelling such carriers to locate their termini great, and thereby inconvenient, distances from the business and traffic centers of a city.

It also appears that one interstate bus company, the Short Line, Inc., has been operating within the area restricted by the commission and from a terminal about 1,000 feet nearer to the business center than is Mann avenue. The commission explains that this apparent discrimination arises, amongst other reasons, from the fact that said Short Line, Inc., was established before the ruling limiting bus routes and that it has now built a terminal which will eliminate lower Broadway from its route. However, it further appears that its new terminal is still contiguous to Washington Square and that it will still be operating from a point much nearer the traffic centers than appellant's busses if his terminal be at or north of Mann avenue and Broadway.

This testimony tends to show that the commission's decision in the instant case, whatever its basis, is in effect discriminatory against appellant. To allow one interstate transportation company to have its terminal and route within the business section, the most suitable and convenient place to take on passengers, and to use the main highways and at the same time to prohibit appellant's similar line from having a terminal on private property in the same district and from traversing substantially the same highways as his competitor is to create a practical monopoly for the favored line.

In my opinion the above facts — the average amount of the traffic, the wide highways, the impracticability of the terminal and route offered to appellant and the apparent discrimination in favor of another interstate transportation company — show the decision of the commission to be unreasonable, unnecessary and an unjustifiable interference with interstate commerce.

The order of the commission should be reversed and the petition of the appellant should be granted.