I am unable to agree to the conclusions reached by a majority of the Court as expressed in the opinion prepared by Mr. Justice DAVIS.
I apprehend that the service authorized by the order of the Railroad Commission now under consideration is a new and independent motor truck service which will place an additional traffic burden on the highway. That it contemplates an independent and additional use of the highway by a rail carrier to perform a service which could as well and economically be performed by the railroad company on its own tracks without the incidental additional burden on the public road traffic. That the service will entail an expense to the carrier greatly in excess of the revenue to be earned if the conditions of the order are complied with.
I find in the record no proof of public convenience and necessity supporting the inauguration of the service contemplated. *Page 536
I think the Railroad Commission was and is without authority to promulgate an order of this character except upon affirmative proof of the existence of public convenience and necessity and inadequacy of existing facilities to supply the needs of public convenience and necessity.
If the railroad company is not moving freight entrusted to it for transportation with that degree of promptness and dispatch with which the public is entitled to be served provision should be made to meet the demands by modern equipment operated on its own tracks.
If the railroad company may substitute the service here contemplated by the use of the public roads with the incidental increases in motor vehicle traffic, just what rail service may it not substitute with motor vehicle public road service without proof of the demand of public convenience and necessity and although existing motor vehicle service is entirely adequate to meet the demands in the affected territory?
For the reasons stated, I think the Railroad Commission in making the order under review departed from the essential requirements of the law, and the order should be quashed.