Chartered Bus Service, Inc. v. Dominion Coach Co.

350 S.E.2d 625, 232 Va. 357, 3 Va. Law Rep. 1334, 1986 Va. LEXIS 265
CourtSupreme Court of Virginia
DecidedNovember 26, 1986
DocketRecord No. 860196; Record No. 860477
StatusPublished
Cited by2 cases

This text of 350 S.E.2d 625 (Chartered Bus Service, Inc. v. Dominion Coach Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chartered Bus Service, Inc. v. Dominion Coach Co., 350 S.E.2d 625, 232 Va. 357, 3 Va. Law Rep. 1334, 1986 Va. LEXIS 265 (Va. 1986).

Opinion

COMPTON, J.,

delivered the opinion of the Court.

We have consolidated for review two appeals of right from the State Corporation Commission which present common questions of law. We decide (1) whether a presumption of continuance of public convenience and necessity attaches to the operations authorized by a special or charter party carrier certificate and (2) whether the Commission may transfer a portion of the operating authority contained within such a certificate upon determining that the proposed transfer is justified by the public convenience and necessity. We answer these queries in the affirmative.

Chapter 12.4 of Title 56 of the Code generally provides that no person, firm or corporation shall engage in the business of a special or charter party carrier of passengers by motor vehicle on any highway within Virginia unless a certificate of public convenience and necessity has been secured from the Commission authorizing such business. Code §§ 56-338.50 and 56-338.52. In general, “special or charter party” means a group movement of passengers transported under a single contract made with one person for an agreed charge. § 56-338.50(d). Pertinent to this appeal is § 56-338.56, which provides

“No certificate may be leased. Any certificate may be transferred if the Commission finds, after such notice and hearing as it deems reasonable, that the proposed transfer is justified by the public convenience and necessity, subject to such [360]*360terms, limitations, and restrictions as may be prescribed by the Commission. Any such application shall be made jointly by the transferor and transferee.”

In these proceedings, separate holders of “B” certificates, as transferors, jointly applied, with their proposed transferees, to the Commission in 1985 for permission to transfer “a portion” of the respective certificates. The holder of a “B” certificate is authorized “to transport passengers in special or charter parties from any point or points within the territory of origin specified in the certificate to other points” in Virginia. Code § 56-338.53(b). In contrast, an “A” certificate authorizes the holder to transport, passengers from any point or points within the Commonwealth to other points in this State. § 56-338.53(a).

After appropriate notices, the Commission held hearings in each case. In one case, ten holders of charter party certificates from the affected geographical area filed a protest against the transfer and eight presented evidence at the hearing. Two other certificate holders from the area appeared as interveners and testified against the transfer. In the other case, ten holders of charter party certificates from the area affected filed protests against the transfer and some presented evidence in support of their protest.

The Commission granted the respective applications by final orders entered in November 1985 and February 1986. Ten protestants in each case have appealed the Commission’s rulings and the applicants in each proceeding appear as appellees along with the Commission.

In one case, Dominion Coach Company applied to transfer certain of its operations authorized under its “B” certificate to Laidlaw Transit (VA) Inc. Laidlaw, apparently the largest school bus operator in North America, sought authority to provide special or charter party service from origin points in the Cities of Virginia Beach, Chesapeake, Norfolk, Portsmouth, and Suffolk formerly served by Dominion. In approving the transfer, the Commission found that Laidlaw was “fit and capable of performing the proposed operations and that the application [was] justified by the public convenience and necessity.” On appeal, the protestants do not attack the Commission’s finding that Laidlaw is fit, capable, and willing to render adequate or proper service. Also, the protestants do not assert here that the transfer will result in ruinous or unreasonable competition.

[361]*361In the other case, Bristol-Jenkins Bus Line, Inc. sought approval to transfer to National Coach Works, Inc. certain of its operations authorized under its “B” certificate to enable National Coach to provide charter service to all points in Virginia from points of origin in 30 named cities and 63 specified counties. In granting the application, the Commission found that the transfer was justified by the public convenience and necessity; that the transferee was fit, capable, and willing to render adequate and proper service; and that the proposed transfer would not cause ruinous or unreasonable competition. Likewise, the protestants in the second case do not challenge on appeal the latter two findings of the Commission.

In both cases, the Commission held that the presumption of continuance doctrine applied to the certificates under scrutiny, relying upon Park Bros. v. S & M Systems Corp., 216 Va. 322, 218 S.E.2d 441 (1975), and Petroleum Transit Corp. v. Commonwealth, 202 Va. 716, 119 S.E.2d 494 (1961). In Petroleum Transit, the Commission approved the transfer of a certificate of public convenience and necessity between petroleum tank truck carriers under the provisions of Chapter 12.2 of Title 56 of the Code. The certificate had been obtained under a statutory “grandfather clause,” rather than upon an original application to the Commission requiring a finding that the proposed operation was justified by public convenience and necessity. We held that in the case of a transfer, the same test would be applied, whether the certificate had been initially granted under the grandfather clause or by an original application to the Commission. That test is whether the transfer is justified by the public convenience and necessity and not whether the proposed operation is so justified. The Court said that the certificate itself equipped the holder with the legislative finding that operations under the certificate are justified by the public convenience and necessity. Thus, the Court held that the burden was on the objectors to the application to show that the transfer of the certificate would not serve the public convenience and necessity. 202 Va. at 721, 119 S.E.2d at 497.

In Park Bros., at issue was the transfer of a household goods carrier certificate, originally granted by the Commission under Chapter 12.1 of Title 56 of the Code upon a finding of public convenience and necessity. There, the Court, relying upon Petroleum Transit, held the “existing certificate carries with it a legislative declaration and a prima facie presumption that it does serve [362]*362the public convenience and necessity, and the burden is on a protestant to a transfer to show ruinous or unreasonable competition, or that the transfer will not serve the public convenience and necessity.” 216 Va. at 326, 218 S.E.2d at 444.

Furthermore, in the present controversy, the Commission held in both cases, relying on four of its prior decisions dating from 1982, that there was “no merit” to the protestant’s argument that a portion of a certificate may not be transferred.

Treating the certificates in each case as being “grandfathered” under the provisions of Code § 56-338.61, enacted in 1960, (“[a]ny person . . . who was lawfully engaged in the business of a special or charter party carrier . . . within this State on January 1, 1960, shall be issued an ‘A,’ ‘B’ or ‘C’ certificate, as requested by such person . . .

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350 S.E.2d 625, 232 Va. 357, 3 Va. Law Rep. 1334, 1986 Va. LEXIS 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chartered-bus-service-inc-v-dominion-coach-co-va-1986.