Jessup v. Commonwealth

5 S.E.2d 482, 174 Va. 133, 1939 Va. LEXIS 147
CourtSupreme Court of Virginia
DecidedNovember 20, 1939
DocketRecord No. 2191
StatusPublished
Cited by10 cases

This text of 5 S.E.2d 482 (Jessup v. Commonwealth) 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
Jessup v. Commonwealth, 5 S.E.2d 482, 174 Va. 133, 1939 Va. LEXIS 147 (Va. 1939).

Opinion

Hudgins, J.,

delivered the opinion of the court.

S. A. Jessup acquired two certificates of public convenience and necessity issued by the Corporation Commission. Certificate No. 313-C was issued on April 13, 1933, authorizing him to transport property by motor vehicle as a common carrier between Dillwyn and Lynchburg, over highways 15, 60, 24 and 460, with restrictions prohibiting him from accepting any freight between Appomattox and Lynchburg and intermediate points. Certificate No. 321-C was purchased by Jessup from V. A. Newton. This certificate authorized him to transport freight by motor ve-hiele as a common carrier between Richmond and Dillwyn over highways 6 and 15, passing through the villages and towns of Crozier, Goochland Courthouse, George’s Tavern, Columbia, Dixie, Fork Union, Bremo Bluff and New Can[136]*136ton, with restrictions that “no freight shall be taken on at Richmond for delivery in Lynchburg and no freight shall be taken on at Lynchburg for delivery in Richmond ;***.” There were certain other restrictions in the certificate which are not pertinent to the issue presented.

Jessup, with the consent of the Commission, sold an interest in the certificates to W. J. Shepherd. Later, Jessup and Shepherd leased the right to transport freight over the highway routes named to the Rapid Transit Lines, Inc. The Rapid Transit Lines, Inc., subleased part of these rights to B. J. Knight. Under the sublease Knight was prohibited from accepting freight at any intermediate points between Richmond and Lynchburg, except between Buckingham Courthouse and Appomattox, a distance of 22 miles.

The parties stated that they were of opinion that Jessup and Shepherd, as joint owners of the two certificates, had the right to transport freight by motor vehicles over the highway routes named from Richmond to Lynchburg and from Lynchburg to Richmond. Knight, acting on this opinion, in June, 1938, launched an active campaign in the two cities soliciting through freight from Richmond to Lynchburg and from Lynchburg to Richmond. When these facts were brought to the attention of the Commission, it notified Knight that he had no authority from the Commission to transport shipments of freight originating in Richmond for Lynchburg or in Lynchburg for Richmond. Upon receipt of this notice, Knight and his lessors consulted their attorney, who immediately filed with the Commission the petition in this case alleging that “public convenience and necessity justified” the removal of the restriction prohibiting the holders of the certificate from accepting freight at Richmond for delivery in Lynchburg and freight at Lynchburg for delivery in Richmond. To this petition the Norfolk & Western Railway Co., the Chesapeake & Ohio Railway Co., the Railway Express Agency, and the Brooks Transportation Co., filed their objections. After a full hearing, the Commission denied the prayer of the peti[137]*137tion. From the final order dismissing the case, this appeal was taken.

The only assignment of error is the refusal of the Commission to remove from certificate No. 321-C the following restriction: “No freight shall be taken on at Richmond for delivery in Lynchburg and no freight shall be taken on at Lynchburg for delivery in Richmond.”

The substance of appellant’s contention is that two certificates of public convenience and necessity, which were issued to establish local freight lines to serve local territories, should be enlarged to authorize the establishment of a through freight line to serve the two cities named. One of the reasons advanced in support of this contention is the fact that the highways, over which appellants are granted the right of use in their transportation business, lie in part — between Richmond and Bremo Bluff, 55 miles — on the north side of James river and that the Brooks Transportation Company, the only other common carrier of freight by motor vehicle between the two cities, is limited to the use of the highways lying wholly on the south side of James river.

It is not mandatory upon the Commission to grant a certificate of public convenience and necessity authorizing an applicant to establish a freight line by motor vehicle over all sectors of every highway, even though there may be no other carrier by motor vehicle serving that particular sector of the highway in question. Whether such a right shall be granted is addressed to the sound discretion of the Commission. The statute authorizing the Commission to issue such certificates or to enlarge any outstanding certificates is Code, sec. 4097y(6), (c), providing: “Upon the filing of an application for a certificate of public convenience and necessity, the commission shall, within 'a reasonable time, fix a time and place of hearing of such application. If the commission shall find the proposed operation justified it shall issue a certificate to the applicant, subject to such terms, limitations and restrictions as the commission may deem proper. If the commission shall find the [138]*138proposed operation not justified, the application shall be denied.” (Italics supplied.)

The remaining part of this subsection, which is not quoted, directs the Commission to give, under certain conditions, preference to holders of existing certificates. Subsection (d) of the same section, provides: “In determining whether the certificate * * * shall be granted the commission may among other things, consider (1) the present transportation facilities over the proposed route of the applicant, (2) the volume of traffic over such route, (3) the financial condition of the applicant, and (4) the condition of the highway over the proposed route or routes.” (Italics supplied.)

The use of the language italicized in that part of the sections quoted shows clearly that the four things enumerated were not the only things the legislature intended to be considered by the Commission in determining whether or not a certificate should be granted.

The applicant further contends that under this statute it is the duty of the Commission to consider the convenience and necessity of that part of the public within the 29-mile sector between Dillwyn and Appomattox to the exclusion of the necessity and convenience of the public over other parts of the route and at the termini of the freight lines. This contention is unsound. “Public convenience is always the paramount consideration.” Petersburg, Hopewell & City Point Railway Co. v. Commonwealth, 152 Va. 193, 146 S. E. 292, 294, 67 A. L. R. 931. However, in arriving at this “paramount consideration,” the convenience and necessity of the entire public affected by the proposed line should be considered. “For unnecessary duplication of transportation facilities, the public ultimately pays. ‘Shoestring’ competition, in the end, hurts everybody.” Petersburg, Hopewell & City Point Railway Co. v. Commonwealth, supra.

The sole issue before the Commission was the removal of a restriction upon the joint operation of two outstanding certificates so as to permit the applicant to do a through business between Richmond and Lynchburg. The evidence [139]*139for appellants tends to show that public convenience and necessity was, in a large measure, confined to that part of the public living and doing business in the area between Dillwyn and Appomattox. A study of the evidence and the able opinion of the Commission, delivered by Judge Hooker, reveals that the Commission duly considered every phase of the evidence.

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Bluebook (online)
5 S.E.2d 482, 174 Va. 133, 1939 Va. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jessup-v-commonwealth-va-1939.