Opinion
No. 34328.
March 24, 1941. Suggestion of Error Overruled April 28, 1941.
1. AUTOMOBILES.
The "grandfather" provision of statute relating to issuance of certificates of public convenience and necessity may be applied to motor carriers who have no outstanding certificates but who could qualify as bona fide operators in a requisite measure of actual fact by definite and well-sustained proof (Laws 1938, chap. 142, sec. 8(a, h)).
2. AUTOMOBILES.
Where operation by a motor carrier has been real and substantial and has been openly and honestly conducted with knowledge of the Public Service Commission and with consent of that authority though not formally certified, the operation has been a "bona fide operation" within purport of "grandfather" proviso in statute relating to issuance of certificates of public convenience and necessity (Laws 1938, chap. 142, sec. 8(a, h)).
3. AUTOMOBILES.
One who was operating on January 1, 1938, as a restricted motor carrier, cannot avail of the "grandfather" proviso to obtain a certificate of public convenience and necessity as a general common carrier (Laws 1938, chap. 142, sec. 8(a, h))
4. AUTOMOBILES.
A motor carrier which prior to January 1, 1938, had carried fresh cream, oil, and other petroleum products, but which only rarely and casually carried other things, could not avail of the "grandfather" proviso to obtain a certificate of convenience and necessity as a general common carrier even if carrier had held itself out as ready, able, and willing to carry any and everything for any and everybody, since what was actually and ordinarily done on and before January 1, 1938, is the test (Laws 1938 chap. 142, sec. 8(a, h)).
5. AUTOMOBILES.
A motor carrier which did not hold an outstanding certificate on January 1, 1938, but resorts to the "grandfather" proviso to obtain a certificate of convenience and necessity as a general common carrier, has burden of proving such prior operation by definite and well-sustained proof, and statements phrased in generalities are not sufficient (Laws 1938, chap. 142, sec. 8(a, h)).
6. AUTOMOBILES.
A motor carrier which did not have an outstanding certificate on January 1, 1938, but which relied on the "grandfather" proviso to obtain a certificate of convenience and necessity as a general common carrier, could not rely on huge box of way bills to show the character of freight theretofore handled, since a box of documents presented to any tribunal whose acts are subject to judicial review is no proof unless the party relying thereon has made suitable tabulations or schedules thereof in a reasonably concrete, readily accessible, and definite form, and produces as a witness the one who made the tabulations (Laws 1938, chap. 142, sec. 8(a, h)).
7. AUTOMOBILES.
Where order of the Public Service Commission granting certificate of convenience and necessity for operation as a general carrier was too broad in light of evidence that prior operation was as a restricted carrier, the Supreme Court would not exercise its authority to enter such order as might be right and just, but would reverse with directions that matter be remanded, so that commission might make a proper order under the principles stated by the court, and so that the parties if they desired could offer further and more definite proof for or against the application (Laws 1938, chap. 142, sec. 28).
APPEAL from the circuit court of Hinds county, HON. J.P. ALEXANDER, Judge.
Flowers, Brown Hester and J.N. Ogden, all of Jackson, and Y.D. Lott, Jr., of Mobile, for appellants.
As a matter of law the Mississippi Public Service Commission had no authority to grant appellee the final order herein complained of and the court below erred in sustaining said final order.
The operations of Mrs. L.M. Luter, doing business as Luter Motor Express, upon which the application and orders here involved are based, were unlawful.
Secs. 7115, 7117 (h), 7122, and 7126, Code of 1930.
No motor vehicle shall be operated upon or over the public roads or highways in the State of Mississippi, by any person or corporation, as a common carrier of passengers or freight, for hire, without such person or corporation having received from the railroad commission a certificate of convenience and necessity authorizing such service.
Sec. 7115, Code 1930.
Appellee, Mrs. L.M. Luter, never obtained a certificate of public convenience and necessity. Her operations were unlawful.
The Federal Motor Carrier Act of 1935 and the Mississippi Motor Carrier Regulatory Act, 1938, are similar, as they apply to applications under the "grandfather clause" of said acts.
Sec. 8 (a), Miss. Motor Carrier Regulatory Act, 1938; Sec. 206 (a), Federal Motor Carrier Act, 1936, as amended.
The burden of proof is on the applicant with respect to authority sought under the "grandfather clause" of Section 8 (a), Chapter 142, of the Mississippi Laws of 1938, just as it is with respect to authority sought under the "grandfather clause" of Section 206(a) of the Federal Motor Carrier Act, 1935. See Nicholas Tuso, Jr., Common Carrier Application, 22 M.C.C. 616; Daniel E. McCarthy Common Carrier Application, 17 M.C.C. 763, 766; Bahr Trucking Corporation Common Carrier Application, 11 M.C.C. 511; Cossitt Bros. Common Carrier Application, 6 M.C.C. 147; Peters Trucking Service and Fast Freight Lines Common Carrier Application, 6 M.C.C. 54; Hagerstown Motor Express Common Carrier Application, 3 M.C.C. 786; Old Colony Coach Lines, Inc., Common Carrier Application, 2 M.C.C. 205, 208; Bornstein Contract Carrier Application, 2 M.C. 95.
The statute only grants the Commission authority to honor an application under the "grandfather clause" where the operations are bona fide. Where the applicant affirmatively proves that the operations are not bona fide then the Commission is without authority to allow the operations to be continued.
The same construction placed on the "grandfather clause" of the federal law by the federal courts should be placed on the "grandfather clause" of the Mississippi law by this court.
Sec. 9 (a), Chap. 142, Laws of 1938; Sec. 206 (a), Federal Motor Carrier Act, 1935.
The expression "in bona fide operation," suggests absence of evasion, excludes the idea that mere ability to serve as a common carrier is enough, includes actual rather than potential or simulated service, and in context implies recognition of the power of the State to withhold or condition the use of its highways in the business of transportation for hire. Plainly the proviso does not extend to one operating as a common carrier on public highways of a state in defiance of its laws.
McDonald v. Thompson, 305 U.S. 263, 267, 83 L.Ed. 164, 166; McDonald Motor Freight Lines, Inc., v. U.S. et al., 35 F. Supp. 132, and cases there cited.
The record contains no evidence that, on and prior to January 1, 1938, appellee transported (1) commodities generally (2) as a common carrier (3) to, from and between the points on the routes described in the Commission's order.
J.G. Lundstrom and W.B. Lundstrom, Common Carrier Application, 13 M.C.C. 491; Moore Transportation Co., Common Carrier Application, 3 M.C.C. 585; Great Lakes Cartage Company, Contract Carrier Application, 2 M.C.C. 119; Myers Trucking Company, Contract Carrier Application, 3 M.C.C. 273; Frank Jess Paterson, Common Carrier Application, 3 M.C.C. 138; Eastern Carriers Corporation v. U.S., 31 F. Supp. 232.
The arrangement which existed between appellee and her two customers, Standard Oil Company and Armour and Company, is an arrangement for transportation "under special and individual contracts or agreements." Hence it is that we respectfully submit that the classification of appellee as a "common carrier by motor vehicle" in the Commission's order was erroneous.
Sec. 3 (g), Miss. Motor Carrier Regulatory Act, 1938.
The term "bona fide operation" excludes the so-called holding-out theory as a basis upon which to award "grandfather" rights.
Both the courts and the Interstate Commerce Commission, in administering this provision in the Federal Motor Carrier Act, have held that mere ability to serve is not enough; that the expression "in bona fide operation" includes actual rather than potential or simulated service.
Lenker Contract Carrier Application, 9 M.C.C. 665; Bornstein Contract Carrier Application, 2 M.C.C. 95, 96, 97; Crescent Transportation Co., Common Carrier Application, 2 M.C.C. 313; Sprout and Davis, Inc., Contract Carrier Application, 9 M.C.C. 677, 679; Loving et al. v. U.S. et al., 32 F. Supp. 464, affirmed by Supreme Court, 60 S.Ct. 898, 84 L.Ed. 818; U.S. v. Maher, 307 U.S. 148, 83 L.Ed. 1162.
Jacobson, Snow Covington, of Meridian, for appellee.
The testimony abounds in statements that commodities in general were hauled over the route by appellee. It is true fresh cream was hauled, but that commodity was only one of many items of freight hauled. Butter, cheese, poultry, household goods, machinery, insecticides, oils, tires, pumps, wheels, practically everything imaginable went to make up the list of freight hauled. The box of way bills carried before the Commission was so large the Commission declined to take these way bills up one at a time and look at them. They were there for the Commission's inspection.
This was no contract operation, as appellants would contend. The fact that appellee had two customers who were better customers than those who had less freight shipped is not sufficient to justify a denial of the application.
Appellee's operation before and after January 1, 1938, was bona fide.
Appellants cite the case of McDonald v. Thompson, 305 U.S. 263, 83 L.Ed. 164-166. But that case is not decisive of the question here. In the McDonald case it was held that "plainly the proviso does not extend to one operating as a common carrier on public highways of a state in defiance of its laws."
Appellee did everything within her power to comply with the laws of the State of Mississippi, as regards her operation both before and after January 1, 1938. She filed applications and posted certified checks with the Commission. Her application was not passed on but remained pending, during which period she was permitted to continue her operation. This court will take judicial knowledge of the fact that there was a period of time when the Public Service Commission permitted worthy operators to continue their operation while applications were pending. Appellee was working with the Commission and posted certified checks, which bespeaks good faith. There was no effort to act in defiance of the Commission, and this the Commission knew when passing on the application here under consideration.
"Bona fide" means in good faith; in all sincerity; without make-believe or fraud; a phrase often used adjectively.
Century Dictionary.
The Legislature in placing the grandfather clause in the statute recognized a property right in those carriers who had heretofore been engaged, bona fide, in transportation by motor vehicle. It intended that that property right should be preserved, and further intended that the territory being serviced and the patrons should not be inconvenienced by a cessation of the service theretofore rendered.
See Mayer v. U.S., 23 F. Supp. 810.
Argued orally by J.N. Ogden and Y.D. Lott, Jr., for appellants, and by E.L. Snow, for appellee.
Mrs. L.M. Luter, doing business as Luter Motor Express, applied to the Mississippi Public Service Commission for a certificate of public convenience and necessity to operate as a common carrier, by vehicle, of commodities generally over regular routes and between fixed termini, there being two of these routes, which together extend over more than 1,000 miles and touch more than 100 towns and villages. The application was based solely upon the proviso in Section 8(a), Chap. 142, Laws 1938, which is generally referred to as the "grandfather clause."
The Commission granted the certificate as applied for, that is to say, as a general carrier, and the objectors have appealed. Sufficient of the further facts so far as shown by the present record, and so far as pertinent to a determination of the issues presented, will hereinafter appear.
The first contention of appellants is that appellee was not in bona fide operation on January 1, 1938, because she had no certificate of public convenience and necessity then or at any time theretofore; that in consequence her operation was unlawful, and being unlawful could not be in good faith or bona fide.
If the fact relied on be, within itself, sufficient to render the operation as one not bona fide, then the entire grandfather proviso would amount to an unnecessary insertion of useless and meaningless language in the statute, because subsection (h) of Section 8 directs the Commission "immediately to issue to the present holders of such outstanding certificates, new certificates authorizing operation over the same routes, and in all respects to conform to the terms of the outstanding certificates." Present holders were not required to present formal new applications, whence the grandfather proviso must be interpreted as applying to those who had no outstanding certificates, but even so could qualify as bona fide operators in a requisite measure of actual fact by definite and well sustained proof.
What is meant by the term "bona fide operation" has not heretofore been considered by our Court, but it has been before the Federal Courts on several occasions. There is a review of it in Eastern Carrier Corporation v. United States, D.C., 31 F. Supp. 232, 236. It will be observed from what is said in that review that no exact definition of the term can be prescribed; but we will say that when, as in the case now before us, the operation has been real and substantial, not something made of straw as a pretense or sham, and has been openly and honestly conducted with the knowledge of the Commission and with the consent of that authority, even though not formally certified, the term has been satisfied within the purport of the grandfather proviso.
There has been here no defiance of the Commission or of the law as was present in McDonald v. Thompson, 305 U.S. 263, 59 S.Ct. 176, 83 L.Ed. 164, relied on by appellant. In the present case appellee applied to the Railroad Commission, the predecessor in authority of the present Commission, and posted her checks, as required of applicants; but appellee was informed by the secretary of the Commission that the Commission was of the opinion that it had no authority to grant the permit applied for. The present record contains no copy of that application, but it must be assumed that it disclosed the same state of facts which is shown by the present application, namely, that the real operation of appellee was that of a restricted carrier; and an examination of the statutes in existence before the present 1938 Act will reveal that it was not clear whether or how the old Commission could deal with an application under which that state of facts was presented.
And this brings us to the point which constitutes the real merits of this case. The record, so far as it shows anything with that definiteness required in such cases, establishes no more than that on and prior to January 1, 1938, appellee was a restricted common carrier and not a general common carrier. One who was operating on the date aforesaid as a restricted carrier cannot avail of the grandfather proviso to obtain a certificate of convenience and necessity as a general common carrier. Here the record shows that what appellee had carried had been fresh cream, oil, and other petroleum products, and that such other things as were carried were merely casual, and were of comparatively rare occurrence. These sporadic or occasional incidents cannot be enlarged into the creation of a right to be certified, under the grandfather clause, as a common carrier of everything which may be transported by motor vehicle, as the order of the Commission attempted to do in this case.
Nor does the fact that the carrier held himself out as ready, able, and willing to carry any and everything for any and everybody change the legal situation so far as the grandfather proviso is concerned. What was actually and ordinarily done on and before the date mentioned is the test, and the burden of proof in such matters rests on the applicant; and, as already stated, that proof must be definite and well sustained, whence it follows that statements by a witness or witnesses which are phrased in terms of generalities are not sufficient.
And in this connection we may notice that it has been argued that appellee presented to the Commission "a huge box of way bills by which the Commission might see for itself how much and the character of the freight being handled." The record shows that the Commission did not examine the contents of this huge box and there is nothing before us as to what was in the box except that they were way bills; and hence, at best, we are remitted to the schedules thereof exhibited with the petition, and these show no more than we have previously mentioned. In Crawford v. State, 162 Miss. 158, 138 So. 589, and Weaver Co. v. Phares, 185 Miss. 224, 233, 188 So. 12, 570, we pointed out that a box full of documents presented to a court, and this includes any tribunal whose acts are subject to judicial review, is no proof at all, unless and until the party who relies thereon has made suitable tabulations or schedules thereof in a reasonably concrete, readily accessible and definite form and produces as a witness the person who made the tabulations.
The principles of procedure and adjudication outlined herein will be found in accord with what has been said in the following federal decisions: Lumstrom Common Carrier Application, 13 M.C.C. 491; Moore Transportation Company Common Carrier Application, 3 M.C.C. 585; Great Lakes Cartage Company Contract Carrier Application, 2 M.C.C. 119; Meyers Trucking Co. Contract Carrier Application, 3 M.C.C. 273; Patterson Common Carrier Application, 3 M.C.C. 138; Lenker Contract Carrier Application, 9 M.C.C. 665; Bornstein Contract Carrier Application, 2 M.C.C. 95; Crescent Transportation Co. Common Carrier Application, 2 M.C.C. 313; Sprout Contract Carrier Application, 9 M.C.C. 677; Fitzgerald's Express Common Carrier Application, 6 M.C.C. 499; Nicholas Tuso Common Carrier Application, 22 M.C.C. 616; McCarthy Common Carrier Application, 17 M.C.C. 511; Eastern Carrier Corp. v. United States, D.C., 31 F. Supp. 232; Loving v. United States, D.C., 32 F. Supp. 464; and United States v. Maher, 307 U.S. 148, 59 S.Ct. 768, 83 L.Ed. 1162, and in this connection we call attention to the fact, as we did in the recent case, Dixie Greyhound Lines v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579, that subsection (c), Section 6, Chap. 142, Laws 1938, the Act which we are now considering, requires conformity as nearly as practicable with what is required under the Federal Motor Carriers Act of 1935 — hence the pertinency and persuasiveness of the cited federal decisions.
Under the present record, the order of the Commission here appealed from is too broad, as we have already indicated, and must be reversed. We are authorized under Section 28 of the Act to modify the order and enter here such order "as may be right and just." We prefer, however, not to attempt to enter a modified order, but conclude rather that it would be right and just to reverse with directions that the matter be remanded to the Commission so that the Commission may make such order as will be proper within the principles which we have herein stated; and, if the parties desire, that further and more definite proof may be made for or against the application.
Reversed and remanded.
Alexander, J., took no part in the decision of this case.