Under Chapter 13700, Acts of 1929, the operation of "any motor vehicle for the transportation of persons or property for compensation on any public highway in this State" is lawful only after "having obtained from the Railroad Commission a certificate that the present or future public convenience and necessity requires or will require such operation."
The purpose of the statute is not only to regulate the use of the public highways by motor vehicles for compensation, but, in order to conserve the public roads and the *Page 1646 safety of the travelling public thereon, to exclude from the use of the public highways in the State any and all motor vehicles operated for compensation except such motor vehicles as are affirmatively shown to be required to serve the "public convenience and necessity." Public highways are maintained by taxation primarily for public use of individuals for themselves; and the use of such highways by motor vehicles for hire, is permitted only when and as the "public convenience and necessity" may require it. Public convenience alone does not authorize the issuing of a certificate. There must be public necessity as well.
Such certificate should be issued only after due notice to all proper parties including "all transportation companies serving any part of the route between the fixed termini", and after a legal, adequate and appropriate hearing and a proper finding duly made by the Railroad Commission predicated upon sufficient affirmative evidence "that the present or future public convenience and necessity requires or will require" the particular operation that is authorized by the certificate.
The statute provides that orders made by the Railroad Commission shall be deemed and held "to be reasonable and just and such as ought to have been made in the premises, * * * unless the contrary plainly appears."
This statutory provision makes the order prima facie legal and proper, and contemplates that in appropriate judicial review, as by certiorari where it plainly appears from the record of the proceedings culminating in the order, that the order was not "properly made and arrived at in due form of procedure" and is not "such as ought to have been made in the premises," the order shall be adjudged to be invalid, since the constitution ordains that "all courts in this State shall be open so that by due *Page 1647 course of law right and justice shall be administered." Section 4, Dec. of Rights.
Where an order that is reviewable on certiorari, is not in accord with the essential requirements of the law, the order will be quashed so that by due course of law, right and justice be administered as required by the organic command and the rules of the forum.
The probative force and legal effect of the evidence adduced before the Railroad Commission and made part of the record on this certiorari, show that the operation of motor vehicles in transportation for compensation on the public highways as authorized by the certificate issued under the order here reviewed, is a convenience to a portion of the public on the route involved, but the evidence does not show that "public convenience and necessity require or will require such operation", within the meaning and contemplation of the statute regulating the business of transportation for compensation on the public highways which are maintained by taxation and designed primarily for use of the public and not for the business of transportation for compensation.
TERRELL, C. J., and BROWN and BUFORD, J. J., concur.