(dissenting). It is my conviction that the majority opinion is wrong and that, if allowed to stand, it could lead to a nullification of all protection the law seeks to afford public carriers which have diligently exercised their franchises.
The law pertinent to this situation in 1941 read, in all essentials, as follows:
“(b) Permits . . . shall not be assigned . . . where the Commission finds such action will be inconsistent with the public interest, or will have the effect of destroying competition or creating a monopoly.” (paragraph 14 Act 367, 1941 - Ark. Stats. § 73-1715)
In 1953 Act No. 386, § 5, added to the above, immediately following the last word quoted, this language:
“ ; nor where it appears that reasonably continuous service under the authority . . . granted by the permit . . . has not been rendered prior to the application for transfer, ...” [emphasis supplied] (§ 5, Act 386, 1953 - Ark. Stats. Supp. § 73-1715)
The above quoted statutes focus the real question in this case, viz: What significance should be given to the words “reasonably continuous service”?
To my mind the answer is clear. It should be such a continuous service [shown by the evidence at the hearing] that the Commission would not feel the need of further evidence to determine the question of ‘ ‘ necessity and convenience” if a new permit was being considered. For an explanation of what is meant no better example could be devised than the very case under consideration.
In 1951 the Commission issued a certificate to Johnson authorizing him to haul commodities over a vast network of state highways. Presumably the Commission would not have issued the permit to Johnson unless it first found from competent testimony that it was at the time justified on the ground of “public necessity and convenience.” If, on the hearing before the Commission in this instance, Johnson had shown that he had given “reasonably continuous service”, during the intervening period then the Commission would have been justified in concluding that the “public necessity and convenience” still existed. However, since it is clear that Johnson made no such showing, the Commission is bound to have acted arbitrarily.
Another example will illustrate the injustices possible under the majority opinion. Mr. X gets a permit in 1940 to haul from A to B, but there is a scarcity of customers and X does not operate. By 1954 Y Co. has built up and adequately handles a prosperous freight business. Then X’s franchise becomes valuable and in 1954 he desires to sell his franchise to financially strong Z Co. It appears obvious to me that the purpose of the 1953 Act was in effect to prevent the Commission from authorizing the sale to Z Co. without first ascertaining if the “public necessity and convenience” justified additional freight service from A to B. The substitute [provided by the 1953 Act] for a hearing on “public necessity and convenience” was that X show “reasonably continuous service.” Since the proof here positively shows a service by Johnson that could not by any stretch of the imagination be considered “reasonably continuous,” the majority opinion cannot be justified.
If the words “reasonably continuous service” do not have the significance we attach to them, then they have no obvious meaning. Indicative of the fact that these words were intended to have significant meaning is that they were deliberately added after 12 years of experience under the old statute.
Justice Holt joins in this dissent.