Arkansas Railroad Commission v. Independent Bus Line

Humphreys, J. Cases Nos. 9800 and 9816 have been consolidated, since the legal question involved in each is identical. Case No. 9800 arose out of an application on March 26, 1926, by the Independent-Bus Lines, Incorporated, to the Arkansas Eailroad Commission for a permit to operate a motor bus line on certain roads leading out of Helena, over which the Messino Bus Company was operating a motor bus line under a certificate of public convenience and necessity issued to it by the Eailroad Commission. The Messino Bus Company intervened and contested the right of the applicant to a permit on the ground that additional bus service was not necessary on said highways. The petition was heard and denied, from which order of denial an appeal was prosecuted to the circuit court of Pulaski County. On May 15, 1926, the appeal was heard in the circuit court, and a judgment was rendered setting aside the order of the Eailroad Commission, from which an appeal has been duly prosecuted to this court. Case No. 9816 arose out of an application on March 13, 1926, by the Caddo Transfer & Warehouse Company to the Arkansas Railroad Commission for a permit to operate a motor bus line over certain public highways in Union and Ouachita counties, Arkansas, over which J. P. Looney was operating a motor bus line under a certificate of public convenience and necessity issued to him by the Railroad Commission. Notice of the application was given to J. P. Looney, who appeared and contested the applicant’s right to a permit on the ground that additional motor bus service was not necessary on said highways. Upon a hearing of the cause the Commission entered an order denying the application, from which an appeal was taken to the Pulaski Circuit Court, Second Division. On May 3Í, 1926, the appeal was heard and a judgment was rendered setting aside the order of the Commission, from which an appeal has been duly prosecuted to this court. The record reflects that the Independent Bus Line, the Messino Bus Company, the Caddo Transfer & Warehouse Company and J. P. Looney had complied with the rules .and regulations. of the Arkansas Railroad Commission, and that it refused permits to the Independent Bus Line and the Caddo Transfer & Warehouse Company to operate motor bus lines upon the highways designated in the respective petitions because it had theretofore "ranted permits to the Messino Bus Company and J. P. Looney to operate motor bus lines over practically the same route and under the same schedules, and that the public convenience and necessity did not require the service of additional companies. • In refusing the permits, the Arkansas Railroad Commission was guided by the following rule it had theretofore promulgated: “No person or motor transportation company shall hoa’in to operate any motor-propelled vehicle for the transportation of persons or property, or both, for compensation between fixed termini or over a regular or irregular route in this State, without first obtaining from the Railroad Commission a certificate declaring that a public convenience and necessity require such operation.” The applicants challenged the authority of the Railroad Commission to promulgate such a rule or to deny them the privilege of operating motor bus lines over the highways in question. The circuit court sustained the contention of the applicants. The sole question therefore presented by this appeal is whether the Legislature ever granted authority to the Arkansas Railroad Commission to issue permits or certificates of public convenience and necessity to individuals, partnerships or corporations to operate motor-propelled vehicles to transfer persons or property for compensation over the highways of the State. This is the very question which this court reserved for future decision in the case of Kinder v. Looney, 171 Ark. 16, 283 S. W. 9. If the Arkansas Railroad Commission has such authority, it was conferred by § 5, act 124, Acts of 1921, which is as follows: “The jurisdiction of the commission shall extend to and include all matters pertaining to the regulation and operation of all common carriers.” It was said in Kinder v. Looney, supra, that “the statute under consideration in this case does not confer express authority upon the Arkansas Railroad Commission to establish a rule that no automobile transportation company shall operate for the transportation of persons for hire over a regular route in this State without first having obtained from the Commission a certificate declaring the public convenience and necessity require such operation.” It follows then, that, if such authority exists in the Railroad Commission, it is by necessary implication from language used in the statute. The language is not broad enough to justify the implication. “Regulation and operation” does not import the right of denial or the right to grant an exclusive franchise or permit which, in effect, involves a denial to some. “Regulation” is not synonymous with “prohibition,” and a delegation of the authority by. the Legislature to regulate does not imply authority to prohibit. Tuck v. Waldron, 31 Ark. 462; Swaim v. Morris, 93 Ark. 363, 125 S. W. 432; Little Rock v. Reinman, 107 Ark. 174, 155 S. W. 105; Bryan v. Malvern, 122 Ark. 379, 183 S. W. 957; Incorporated Town of Paris v. Hall, 131 Ark. 134, 198 S. W. 705; North Little Rock v. Rose, 136 Ark. 298, 206 S. W. 449. We think the Legislature never intended for such an implication to be drawn from the language used in the statute, for the reason that the act in which the section appears specifically repealed § 13 of act 571 of the Acts of 1919, which conferred authority on the Arkansas Corporation Commission (now abolished) to grant certificates of convenience and necessity to public service corporations. The specific repeal of such power indicates very clearly that the Legislature had no intention of again conferring the power upon the new body through inference or implication. No error appearing, the judgments are affirmed.