Atlantic Greyhound Corp. v. Public Service Commission , 132 W. Va. 650 ( 1949 )

I respectfully dissent from the decision of the Court in this case. The reasons for such dissent are as follows:

Jurisdiction to review a final order of the public service commission is conferred on this Court by Chapter 50, Article 8, Section 1, Acts of the Legislature, 1937, but before such jurisdiction may be exercised a written petition must be presented to this Court, or a judge thereof in vacation, "within thirty days after the entry of" such final order. In the instant case jurisdiction of this Court to review a final order of the public service commission depends upon the power of the commission to grant a rehearing, in that, the final order was entered by the commission on March 24, 1948, and application for a rehearing was filed by the Atlantic Greyhound Corporation on April 2, 1948, which was denied by the commission on April 20, 1948. The petition for this appeal was filed on May 4, 1948.

The public service commission of this State is an administrative body created by an Act of the Legislature, and has limited legislative and quasi judicial powers derived wholly from statute. Bluefield v. Commission, 94 W. Va. 334,340, 118 S.E. 542. None of the enactments conferring jurisdiction and power on the commission makes any reference to the power of said commission to grant a rehearing in a proceeding once disposed of by final order.

In Reynolds v. Alexandria Motor Bus Line (Va.), 126 S.E. 201,205, the Supreme Court of Appeals of Virginia, in discussing the powers of the State Corporation Commission of that State, whose powers and functions include those exercised by the public service commission of this State, held: "The right to a rehearing of a final judgment is not a common-law right, and exists only by virtue of statute." It is noteworthy that in theReynolds case, the Virginia Court was considering a governmental body whose powers were conferred by the Constitution of that State, and include such essentially judicial powers as those of entering money judgments. Section 155, et seq., Article XII, Constitution of Virginia, 1902. In this jurisdiction the public service commission is not a body specifically authorized by the Constitution, and exercises no such judicial powers as those conferred on the State Corporation Commission of Virginia.

Regulatory bodies, similar to the public service commission of this State, have no power to grant rehearings, in the absence of statute, conferring such power on them. NorthCarolina Utilities Comm. v. Norfolk So. Ry. Co., 32 S.E.2d 346.

The Court's opinion seems to be based on the provisions of Code, 24-1-7, and Chapter 86, Article 5, Section 5, paragraph a, Acts of the Legislature, 1939, conferring upon the public service commission of this State the power to make rules of practice and procedure. I do not think those statutes confer on the commission the important power to grant a rehearing.

The effect of the Court's opinion is to permit the commission, by entertaining a petition for a rehearing, to extend the thirty-day period for an appeal, provided for by Chapter 50. Article 8, Section 1, Acts of the Legislature, 1937. Thus, the opinion of the Court in the instant case opens the way for the public service commission of this State to change a solemn enactment of the Legislature by promulgating a rule of procedure providing for rehearings. In my opinion the Court has granted to the public service commission a power which the legislature did not see fit to delegate to it.

I am in accord with the holding in the opinion of the Court that the filing of a petition for rehearing with a court or a commission having power to grant such a rehearing tolls the running of the time within which an appeal may be taken until final disposition of the rehearing. Morse v. United States, 270, U.S. 151, 46 S.Ct. 241, 70 L.Ed. 518. See Straley v.Payne, 43 W. Va. 185, 27 S.E. 359; Saginaw Broadcasting Co. v.Federal C. Com'n., 96 F.2d 554, 558. But in this case, as hereinbefore stated, the public service commission lacks power to grant a rehearing, and, therefore, the petition for an appeal considered by this Court came too late. The appeal granted herein should have been dismissed as improvidently awarded.

The record in this proceeding, in my opinion, does not present a question of granting a certificate of necessity and convenience covering roads or territories already served by a certificated common carrier by motor vehicle, as was true in the cases of McKee v. Public Service Comm., 124 W. Va. 10,18 S.E.2d 577, and Transportation Co. v. Commission, 125 W. Va. 690,26 S.E.2d 519. Although the commission, in its report filed in this proceeding as well as in the statement filed with this Court, adverted to the inadequacy of the service of the Atlantic Greyhound Corporation over thirteen and one-half miles of Route No. 119, I think such reason has no place in this proceeding.

It is firmly established by statute and judicial decisions that a certificate of necessity and convenience cannot be granted to a competing carrier until the holder of an existing certificate is given a reasonable opportunity to remedy inadequate and insufficient service. But this proceeding presents a different question, which is controlling.

It is manifest that the public service commission, in granting a certificate of public necessity and convenience to Elk River Bus Company over thirteen and one-half miles of Route No. 119, was moved by the fact that it would not be profitable to operate a passenger motor carrier line over the side roads without also granting the right to operate over portions of Route No. 119 between Clendenin and Charleston. I think that the certificate granted to Elk River Bus Company is only incidentally competitive with the existing certificate, when it is considered that the existing certificated route extends from Charleston to Clarksburg, a distance of approximately one hundred and sixty miles, and that approximately three and one-half miles from the mouth of Jordan's Creek to Clendenin and approximately ten miles from the mouth of Cooper's Creek to Charleston, are but small portions thereof. It requires credulousness for one to conclude that granting a certificate covering thirteen and one-half miles would have any serious effect on the income derived from the one hundred sixty-mile certificated route.

The people of this State are now engaged in the construction of a statewide system of roads, for which a considerable amount of public money has been expended. I think the public service commission should not be precluded from granting the use of such parts of that system to carriers of passengers by motor vehicle, when public necessity and convenience require such use.

The effect of the holding of the Court in this instance is to deny a number of persons, living on the side roads, transportation by motor bus in order to uphold an admitted monopolistic certificate covering only the main road. The side roads and the main road, constructed by public authority and paid for by public funds, should be used in such manner as to advance the interests of the people. I do not think the Legislature intended the result reached by this Court herein, nor do I think it coincides with the best interests of the people of this State.

It seems to me that the holding of this Court has permitted a monopolistic certificate of necessity and convenience, held by Atlantic Greyhound Corporation, to be interposed as a barrier to the accomplishment and furtherance of a progressive and beneficial public policy, thus depriving the people living on the side roads of an opportunity to employ the roads on which they live for the purposes intended. In other words, I think that a benevolent and legal monopoly, intended to promote the public convenience, has been distorted in this instance, so as to override such convenience.

For the foregoing reasons, I would: first, dismiss the appeal as improvidently awarded; and, second, if considered on its merits, I would affirm the final order of the public service commission.

I am authorized to say that Judge Kenna joins in this dissent.