(dissenting). By combining certificates already held, and joining routes at the common point; of Hoxie, appellant is enabled to render direct service to Little Rock, Pine Bluff, Searcy, Hot Springs, and numerous other points.
The great weight of state court decisions is to the effect that a motor carrier may not tack or combine certificates having a common point, so as to render a through, service, unless there is proof that public convenience and necessity require the through service, and unless the regulatory commission finds that the public need does require the service. Appellee cites cases from Michigan, Wyoming, Kentucky, Oklahoma, Ohio, New York, Florida, and Pennsylvania, wherein the courts held as above stated. In fact, I find no state decision that holds to the contrary.
I do not consider the proof sufficient to establish that public necessity and convenience require additional service. Five or six witnesses (representing concerns at Jonesboro, Walnut Ridge, Corning, Harrisburg, and Jacksonville) testified to a need for service, but I find no testimony that indicates any need for added service between Jonesboro and Little Rock, Pine Bluff, Stuttgart, Hot Springs, Malvern, Arkadelphia, Searcy, and other points, which Superior can now serve. Several witnesses testified as to the adequacy of the present service that is being rendered by other companies, and, to me, the absence of any testimony for the need of additional service from some of the larger cities mentioned, is rather conspicuous.
In fact, in turning down appellants application for a permit to operate between Jonesboro and Little Rock, Jonesboro and Stuttgart, and other routes applied for, the commission, after summarizing the present service offered by protesting carriers, found as follows:
“As seen, it appears that protesting carriers aré offering adequate service between points on the routes applied for, with the exception of the route between Hoxie-Walnut Ridge, Jonesboro and Harrisburg.”
This finding necessarily included service between the cities mentioned in the first and third paragraphs, and I therefore, am of the opinion that the commission should have prohibited Superior from “tacking.”
It should also be borne in mind that even if there had been proof of the need of additional service, under our decisions, existing carriers must be afforded an opportunity to improve their service, and fail to make such improvement, before a new carrier may be certificated. Fisher v. Jonesboro Transfer Co., 234 Ark. 40, 350 S. W. 2d 516: Mo. Pac. R. R. Co. v. Williams, 201 Ark. 895, 148 S. W. 2d 644; Taylor v. Black Motor Lines, Inc., 204 Ark. 1, 160 S. W. 2d 859; Arkansas-Best Freight System, Inc. v. Missouri Pacific Freight Transport, Inc., May 29, 1961; Potashnick v. Fikes, 204 Ark. 924, 965 S. W. 2d 615; Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907. This, of course, has not been done in the present case.
The majority states.
“Appellees cite a long list of cases from other states holding that the authority to tack must be based on convenience and necessity of the public, the same as any other authority is granted the carrier, and that the burden is on the applicant carrier to show such convenience and necessity. Appellant cites federal cases holding that the burden is on the one opposing the tacking to show that it should not be allowed. Our statutes do not specifically cover the point, nor has this Court had occasion to rule on that issue, and we do not reach it noio,1 because by overruling the petition to prohibit tacking the Commission has specifically passed on the question of whether tacking in this case should be allowed and we cannot say that the finding of the Commission in that respect is contrary to the weight of the evidence.”
I do not quite understand the italicized language for it definitely appears to me, that in permitting appellant the privilege of tacking, the majority is holding that the applicant carrier does not have to show public convenience and necessity. This is, as heretofore pointed out, contrary to every state decision that I have found, and I believe this to be the first state court holding to this effect. Inasmuch as Superior’s operations in this litigation are of an intrastate nature, it would appear that decisions from sister states should be persuasive, rather than decisions in federal cases involving interstate commerce. However, as I interpret the quoted statement of the majority, it likewise is not placing on the protesting carriers the burden of showing that tacking should not be allowed. I am unable to comprehend how this case can be determined without that issue being passed upon. Actually, it seems to me that the majority is passing on the question, and is taking the federal view, but even so, I feel that the testimony introduced by protestants established that the additional service is not necessary, and my thoughts in this connection are substantiated by the finding of the commission itself (heretofore quoted) that the present carriers are offering adequate service.
For the reasons herein stated, I respectfully dissent.
I am authorized to state that Justices MoFaddin and Ward join in this dissent.
Emphasis supplied.