Garrett v. Delta Motor Line, Inc.

Gillespie, J.,

concurring in part and dissenting in part:

T agree that in a proper case permission may be granted an applicant to traverse a highway already being-traveled by an existing carrier where such new travel is necessary to properly serve the new territory and render such service financially feasible. The authorities cited in the original opinion applied this rule but only *572where the new line comes into competition with an existing carrier in a limited territory. In one case the duplication was only 18 miles and the so-called new territory was approximately 108 miles. In another case, the entire length of the line was 139 miles and the closed door portion duplicating another line was only 28 miles. I find no case where the rule as to duplication has been ■ applied except to a limited territory and where there was a full development of all facts necessary to an application of the rule. After a careful consideration of the briefs on suggestion of error, I am convinced that this case was not sufficiently developed to justify ns in applying the stated rule.

I think the answer to the question would be to remand the case to the Commission for development of the facts on the closed-door, and related issues.

The territory of duplicate service is not limited in this case. The length of the duplicate service is 116 miles and the length of the new territory is about 80 miles.

The Commission had before it a question of granting appellant, applicant there, unrestricted rights each way from Jackson to Holly Springs, via Highway 51 from Jackson to Grenada, and Highway 7 from Grenada to Holly Springs. No reference was made to a closed door operation on Highway 51 and the closed door issue was not developed by the parties, nor even considered by the Commission. That issue was not discussed in any of the briefs either before the circuit court or this Court.

No proof appears in the record from which any finding could be made as to whether applicant would be provided with enough revenue from the closed door operation to make the entire operation profitable or economically sound. Apparently the Commission did not consider the alternative of interchange of freight at Grenada, and whether such would best serve the Highway 7 area.

*573There has been no finding by the Commission or the courts as to whether the applicant is willing and able to operate the certificate ordered by this Court. Section 7.641 of the Motor Carrier’s Act requires that the Commission, before it. issues a certificate of public convenience and necessity, ‘ find the proposed operation justified, and that the applicant is fit, willing, and able to properly perform the service proposed.” The Commission could not have made the finding required by this section because the certificate ordered by this Court was never proposed by the applicant and no testimony was developed on that issue.

The facts in this case are almost identical with Dixie Greyhound Lines, Inc. v. Mississippi Public Service Commission, et al., 190 Miss. 704, 200 So. 579, except the Dixie case involved the transportation of passengers. The principle laid down in the opinion on suggestion of error in the Dixie case, supra, with reference to a feature of the case not presented to the Commission and there developed as a distinct issue, seems to me to be directly in point. It is not a question of the power and authority of this Court to modify an order of the Commission. The point is whether there is a factual basis for the exercise of such power.

Appellees are justifiably surprised that this Court would order the closed-door operation over the larger part of the entire route when such was never proposed, never developed as an issue, never considered by the Commission, and no proof appears in the record that such an operation is feasible, and no finding has or could have been made that the applicant is fit, able and willing to properly perform the service so ordered. Nor has the Commission had the opportunity of considering, in view of the finding of this Court that the Highway 51 area is adequately served, whether an interchange of freight at Grenada should be ordered rather than the closed-door operation.