Tri-State Trst. Co. v. Gulf Trsp. Co. , 201 Miss. 744 ( 1947 )

DISSENTING OPINION. With deference, I disent from the views of my associates in this matter. Respectfully, I submit my views.

For convenience, I shall refer to the appellee as "Gulf", and to the appellant as "Tri-State."

Gulf operates in Mississippi from Walnut in Tippah County, near the Tennessee line, to a point on the Alabama line near Lucedale on Highway 15, and from Lucedale to Pascagoula on Highway 63. It has a franchise also from Kosciusko to Raleigh, and from Raleigh to Bay Springs on Highway 15. It has no entry into Jackson except from the south, starting at a point on the Louisiana line below Tylertown, proceeding north through Monticello and Crystal Springs into Jackson. It applied to the Public Service Commission for certificates of convenience and necessity to permit its operation of busses from Forest through Brandon to Jackson; and from Raleigh through Brandon to Jackson; and also from Philadelphia on Highway 15, where it has a franchise to Carthage on Highway 35, on which highway it also has a franchise. Over these routes Tri-State already has a certificate. Gulf proposed to operate with closed doors from Forest on Highway 35 to Jackson, and from Raleigh to Jackson, but with open doors between Carthage and Philadelphia.

The Public Service Commission refused all certificates, except that it granted a permit to operate with closed doors between Carthage and Philadelphia, traversing Highway 16 between Highway 15 and 35. On appeal to the circuit court from the order of the Commission, the action of the Commission was reversed by the circuit court and it was ordered to issue certificates of convenience and necessity to Gulf in accordance with its application, except all Gulf busses over all of these routes were to be operated with closed doors. From that judgment, Tri-State appealed here.

The Gulf operates 1,864 route miles of truck lines, of which 962, or 52%, are in this State. Gulf also operates 1,419 route miles of bus lines, of which 813, or 58%, are in Mississippi. It operates 1,952 route miles by rail lines in seven states, of which 906, or almost 50%, are in Mississippi. Its bus lines on Highways 15, 9 and 35, from which it sought entry into Jackson, as aforesaid, serve more than a score of counties in Mississippi with more than three-quarters of a million people as inhabitants thereof, and it was to serve their convenience and necessity in traveling to Jackson primarily that Gulf sought this certificate of convenience and necessity. Of course, Gulf may be assumed to also have had in mind a reasonable pecuniary return.

Unfortunately, the application of Gulf was misunderstood almost at the beginning of the hearing before the Commission. The case seems to have been tried on the theory that Gulf proposed to furnish a single bus service, whereas in fact their proposal was to furnish a single line control service, from the territory defined, into and out of Jackson. A "single bus service" implies that a passenger might board a Gulf bus anywhere on its certificated routes and without leaving the bus be carried into Jackson, while a "single line control service" means transportation service under a single management. The latter is what was offered to be furnished by Gulf, and the confusion between the two seems to have affected materially the conclusion of the Commission. The chief executive officer of Gulf testified that a "single line service" is "service under one handled control; we couldn't say that in every instance we could start a bus out of every point on our line and run it direct to all terminals on our line, there might be changes of equipment necessary; a bus from the north scheduled from Walnut to Jackson, Mississippi, it might be necessary to change equipment at Louisville; that is a physical change of buses; it don't involve the passenger; the passenger will have an empty bus waiting at Louisville." This, Gulf argued, would be a great convenience as the inconvenience to thousands of people who frequently miss connections at junction points between Gulf and Tri-State would be averted. It would also avoid delay occasioned by passengers being compelled to await the arrival of busses from Tri-State on different schedules, and would also avoid any inconvenience of baggage handled by two companies.

The junctions, or, as called by a Gulf witness, "contacts," between Tri-State and Gulf on the routes involved are Pontotoc, Houston, Mathiston, Ackerman, Philadelphia, Newton, Forest, Raleigh, Hattiesburg, Carthage and Kosciusko. The witness also called these places "interchange points." Gulf argues that to get to Jackson from northeast and southeast Mississippi involves many interchanges between Gulf and Tri-State avoidable under their proposal.

Gulf contended that they would serve a northeastern route from Jackson, having a total of 279 miles, of which the duplication over Tri-State would be only 70 miles. The southeastern route would have a total length of 208 miles, of which the extension, with duplication, would be for only 49 miles, and the bus service would improve in more than a score of counties having a total population of more than 700,000 people, as stated supra. The record supports the claim of Gulf, in my opinion, that there would be sufficient volume of traffic to support the through routes for which they applied, the minimum estimated revenue for these lines being 40c per bus mile and the cost of operation being only 27c per bus mile. I think Gulf maintained its point, that it is fit, willing and able properly to perform the services proposed, and is qualified to do so, as specified in the statute involved.

In the trial before the Commission, Gulf introduced numerous witnesses, including a college president, bank officials, wholesale merchants, a chamber of commerce employee, former and present public officials, a labor union executive, lumbermen, manufacturers, merchants, lawyers, legislators, judges, civic leaders and business men, school superintendents, and representatives of business interests generally. Tri-State introduced a much smaller number of witnesses, including some public officers and business men but generally its witnesses had had only limited opportunities for observation and appraisement of the situation. It must be conceded that all of the witnesses were men of character and intelligence, but to me it seems that the greater opportunity of observation and experience of the witnesses for Gulf should have had a more effective weight in the decision in this matter by the Commission than apparently it had.

Gulf argued that the public convenience and necessity demands the service as proposed, especially as there is no train service into Jackson from southeast and northeast Mississippi; and that conditions at Laurel, Philadelphia and Ackerman would be substantially relieved. Gulf proposed three schedules each way per day without change from Louisville and Pascagoula, and the evidence seems overwhelming that this additional service is needed. Gulf has an interchange arrangement with the Gulf, Mobile Ohio Railroad Company whereby tickets would be interchangeable for passengers on either a Gulf bus or train. Gulf contended, reasonably enough, that the Tri-State selfishly fights the granting of its applications for these certificates of convenience and necessity for fear it will lose revenue, and hence the controversy is between Tri-State and the public involved, which public overwhelmingly attested the merits of Gulf's application. It was also argued, on behalf of Gulf, that since Jackson is the center of the State and its capital, every facility making it more convenient for people from all parts of the State is a public convenience and necessity. They argued that connections between the two lines at various points are bad, which the Gulf would correct if granted the franchise sought, because it would eliminate all changes from Pascagoula to Jackson and substitute only one change from Walnut to Jackson, which would be perhaps at Louisville.

Gulf argued that the Commission misconceived the law, and found against the overwhelming weight of the evidence, contending that duplication of franchises had been permitted under the policy of the Commission in proper cases frequently, and has many precedents in Mississippi and should be followed since public convenience and necessity is the proper controlling factor. It was contended that granting the certificate sought by Gulf, the weakest of the four big bus companies in Mississippi, having the poorest routes, could not injure Tri-State, which uses the most important highways in Mississippi, and that the resulting competition, if any at all, would be trivial and indirect. Gulf argued that the new traffic generated along the proposed new lines, from their present franchises, into Jackson, would concentrate travellers into Tri-State lines leading in all directions out of Jackson, and thereby improve Tri-State business, thus materially enhancing the public convenience and necessity of the whole travelling public. The result would produce benefit, rather than detriment, to the operations of Tri-State. Gulf argued also that the law does not grant the Commission a free hand to issue or refuse certificates, at its pleasure. Its function is not a matter of grace, but of justice.

On the other hand, Tri-State argued that a "single bus service" is the object of the application and cannot be attained. It argued also that since Tri-State has permits over all routes involved, to grant the application of Gulf would be a duplication in areas where it handles the traffic satisfactorily because of the intersections at the points named. It relies upon the cases of Tri-State Transit Company of Louisiana, Inc., v. Dixie Greyhound Lines, Inc., 197 Miss. 37, 19 So.2d 441, and Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission et al., 190 Miss. 704, 200 So. 579, 1 So.2d 489. The record contains resolutions by various civic bodies and public boards in the counties involved, urging upon the Public Service Commission the necessity of granting Gulf the certificate sought in order to serve the convenience of the public. Tri-State argued that these resolutions were adopted on the assumption that there would be a "single bus service," which cannot be maintained. Tri-State also said that they will have busses available for changes from Gulf to their busses at intersections, and will otherwise adjust schedules and connections as the Commission thinks best. I have examined the resolutions by the civic groups and public bodies, and it does not seem to me that they were based primarily on the idea advanced by Tri-State here; and that Tri-State having a large interstate business, with busses coming from distant points beyond the State of Mississippi, and passing through to other distant points also beyond Mississippi, might find itself practically unable to adjust its interstate schedules to accommodate local traffic as they propose.

Tri-State further contended that its service is adequate; and without complaint, which seems to be rather naive, since so many interested people in northeast and southeast Mississippi are complaining here that the service of Tri-State is not adequate. However, it argued that a witness, an official of Gulf, admitted that Tri-State takes care of all local needs, but since Gulf would operate, if granted the certificate, with closed doors, it would not appear that Gulf seeks to invade the local patronage of Tri-State. Tri-State argued also that, if granted the franchise sought, Gulf would take business away from it. It seems hardly possible that, with closed doors, Gulf could get much passenger service along the proposed duplicated routes. Tri-States cited the legislative policy that "the property of the State in its highways may be protected from unreasonable, improper and excessive use; that the inherent advantages of highay transportation may be recognized and preserved; that sound economic conditions in such transportation and among such carriers may be fostered; that the service by motor carriers may be adequate, economical, and efficient; that reasonable charges may be made therefor, without unjust discriminations, undue preferences or advantages, and unfair or destructive competitive practices; that relations between motor carriers and other carriers may be improved and coordinated; . . ." Section 7633, Code 1942. It contended that this declared policy supports its objection to the granting of the franchise to Gulf. It seems to me, however, to be a strong plea in favor of Gulf, rather than against it. Tri-State argued that its route from Pascagoula to Jackson is the most direct route, and denied that delay, because of missing connections, is bad. Tri-State declared it delivered six times as many passengers to Gulf at Laurel as Gulf to Tri-State, which is, no doubt, approximately accurate, on account of the interstate connections of Tri-State, but is no argument to refute the idea of northeast and southeast Mississippi that they need the service Gulf seeks permission to render them.

In Pan American Bus Lines Operation, 1 M.C.C. 190, 203, it was said that: "The question, in substance, is whether the new operation of service will serve a useful public purpose, responsive to a public demand or need; whether this purpose can and will be served as well by existing lines or carriers; and whether it can be served by applicant with the new operation or service proposed without endangering or impairing the operations of existing carriers contrary to the public interest."

In Tri-State Transit Company of Louisiana v. Dixie Greyhound Lines, 197 Miss. 37, 19 So.2d 441, this Court said that: "In proceedings on application of motor carrier for additional certificate of public necessity and convenience, the Public Service Commission's findings are prima facie correct and reviewing court cannot substitute its judgment for that of Commission and disturb its findings where there is any substantial basis in evidence for such findings or where ruling of Commission is not capricious or arbitrary." However, this Court also said in the same opinion: "The evidence for the Dixie Company tended to show that the public convenience and necessity would be promoted by granting the franchise it applied for. The evidence for the Tri-State Company, which was substantial, tended to show the contrary." In the case at bar, it seems to me that the evidence for the Gulf is so overwhelming that by comparison the evidence for the Tri-State does not reach a sufficient degree to be substantial, and by this Court's own formula, this franchise should have been granted. The rule is announced in the Dixie Greyhound Lines v. Mississippi Public Service Commission case, supra, as follows: "That a court of competent jurisdiction has the power to review any order made by an administrative commission to determine whether it is supported by substantial evidence, within the meaning of that term, as herebefore defined, or is purely arbitrary and capricious, beyond the power of the commission to make, or violates some statutory or constitutional right of an interested party." But, in the opinion, the Court also said, dealing with duplicating certificates, that "we do not think that the permission granted . . . can be said to be without substantial evidence to support it, or that it was manifestly against the evidence; nor are we able to say that such action constituted an unwarranted infringement of the existing franchise." I direct attention especially to the clause "or that it was manifestly against the evidence," and inability of the Court to say that "such action constituted an unwarranted infringement of the existing franchise." The rule in the Tri-State Transit Co. of Louisiana v. Dixie Greyhound Lines case, 197 Miss. 37,19 So.2d 441, that simply because the protestants, Tri-State, had some substantial evidence, the finding of the Commission would not be disturbed, in my judgment, endows the Commsision with to much power, and in cases like the one at bar, where its order is "manifestly against the evidence," its action should be reversed.

The Supreme Court of Rhode Island in Abbott v. Public Utilities Commission, 48 R.I. 196, 136 A. 490, 491, held that in statutes requiring issuance of certificate of public convenience and necessity by Public Utilities Commission for operation of motor bus line, the meaning of "conveience" is not its colloquial sense as synonymous with "handy" or "easy of access," but in accord with its regular meaning of "suitable" and "fitting" and "public convenience" and refers to something fitting or suited to public need. The Court said further that: "The word `necessity' in the expression under consideration does not have reference to an indispensable necessity, but rather that the route in question appears to the commission to be reasonably requisite."

The New Jersey Court in Re Washington Avenue in Burrough of Chatham, 139 A. 239, 240, 5 N.J. Misc. 858, held that public necessity means need for reasonable convenience, facility and completeness in accomplishing a public purpose.

The overwhelming weight of the evidence in this case that the public convenience and necessity of approximately one-third of the people in Mississippi, in more than a score of counties, would be served by granting the proposed certificate to Gulf, required the Commission to grant it even within the strictest of the foregoing formulae, which this Court has prescribed for review of the orders of administrative boards. To designate the Commission's failure to do so as arbitrary within this rule, is no more a reflection on their reaction to the evidence than it is to characterize the judicial process as erroneous because of making a wrong adjudication. In the one case the result is "arbitrary," in the other it is "erroneous." So that, where this Court speaks of an order of the Commission being "manifestly against the evidence," it would be tantamount to saying that such order would be arbitrary. I think the scales, by which the people's needs and the Commission's power are to be balanced, require at least restraint in the exercise of the Commission's power to deny a franchise where, as here, such a numerous train of witnesses, people in position to survey and appraise the situation, whose efforts have developed their own communities, and whose experience in public affairs qualifies them to speak convincingly, so forcibly testify that public convenience and necessity require that it be granted. After all, successful conquest of the problems of life in the attainment of position "on the mountain top" does afford a vantage point of observation, which should challenge pondering in any deliberative body. In my opinion, failure of the Commission here accurately to appraise the comparative force and power of the evidence on both sides, in proper proportion to its respective probative weight, resulted in its decision becoming arbitrary.

It is difficult to define public convenience and necessity in such proper generic terms that such definition will fit every situation, so various are the circumstances involved in different conditions. However, it seems to me that, while an apt general definition may indeed be elusive or even fugitive, in the case at bar we have a fitting specific illustration of the meaning of the phrase, which the facts of this record disclose. When citizens from all of the vast territory involved, representing nearly a million people, ranging from potential to actual travelers to and from their chief commercial and industrial city; the headquarters of all major political campaigns for State office; also headquarters for many religious groups in the State; the place for holding of numberless conventions; the seat of the Government; with which the citizen must often make contact among various boards, commissions and bureaus, and where may be found the different State officials, including the Governor; and where the Supreme Court sits, — all of which so often makes it necessary for such travel to and from Jackson, — should compel the conclusion that whatever contributes to the comfort, the expeditiousness, the economy, the safety, and freedom from travel vexations and delay on these trips, naturally ministers to the public convenience. Therefore, it seems to me, here we have a valid demand of public convenience under circumstances of necessity, and its denial cannot be classed as less than arbitrary.

In this record are numerous resolutions signed by many prominent members of civic organizations and public boards, which have been mentioned ante. They were admitted before the Public Service Commission without objection and we have considered them here, but respectfully I insist that they have not received the weight to which they are entitled. They were treated properly as competent testimony before the Commission, where common-law rules of evidence are much relaxed and not followed to any great extent, but too little importance has been attached to them both there and here. In a footnote to his article on Rules in Administrative Tribunals, Mr. Wigmore, Vol. 1, p. 39, quotes from the digest of decisions under the Interstate Commerce Act by Lust as follows: "It is perhaps not too much to say that not a single case arising before the Commission could be properly decided if the complainant, the railroad, or the Commission, were bound by the rules of evidence applying to the introduction of testimony in courts." Wigmore lays down the rule that the policy of the legislatures and the courts is to free public service commissions from the usual common-law or statutory rules of evidence. Therefore, these resolutions, by groups or representative local citizens, are matters demanding great consideration, in my judgment, as the boards adopting them comprise spokesmen of the best business and political interests of their respective communities. But, it is said that these resolutions are motivated by the impression that Gulf offers "a single bus service" instead of what in fact it was offering "a single line control" service. I do not think this is correct, as witness the following quotations from typical resolutions. For instance, the citizens of Mantee requested a "direct one line service to our State Capital"; the Louisville Rotary Club said: "This area is without adequate public transportation into the State Capital of the State of Mississippi, and this Rotary Club is made up of men representing the various interests of the City of Louisville and `direct transportation' is sought"; the Mayor and Board of Aldermen of Louisville want "additional transportation facilities into the Capital of the State"; the Mayor and Board of Aldermen of Noxapater concern themselves with additional facilities, complaining of time lost under the present situation; the Supervisors of Leake County say that public convenience and necessity require the operation of a double, single line bus service into and out of Jackson and that present facilities are grossly inadequate.

The Interstate Commerce Commission, speaking of changing from one line to another with differing schedules, 31 M.C.C. 317, said: "We have no difficulty in arriving at the conclusion that the necessity of making such frequent changes of busses, and the consequent delays incident thereto, has been a handicap to the development of passenger transportation over this route." It will be remembered that in this case Gulf said that the probability is that the only change of busses will be at Louisville on the northeastern end of the route, and that there its empty bus would be waiting to receive immediately passengers for transfer.

It is true that Tri-State would lose the custom of the transferred passengers conveyed by Gulf to the interchange points, and that such competition would be substantial, as forecasted by the evidence of the public travelling need to have it handled more conveniently. However, as pointed out elsewhere herein, there would be no local competition. But the public convenience and necessity of the people should be the dominant consideration, even to the extent of causing loss of business to one carrier by granting a certificate to another carrier, where great improvement of service to the public will ensue.

The right to use the highways of this State belongs to the people and not to any common carrier. In a case when a large proportion of the most successful and informed citizens of northeastern and southeastern Mississippi contributed an overwhelming weight of testimony to the hearing of an application by the Commission as here; asserting that public conveniences and necessity required that the public highway be used for this proposed new service, it strikes me that the tremendous weight of this testimony, especially when compared with the evidence of lesser weight offered by the protesting Tri-State, rates the Commission's refusal to grant the certificate as arbitrary.

A danger in the present situation is the hazard of developing monopolly in a bus line over so many Mississippi highways. Such monopoly could conceivably throttle substantially the development of bus transportation in this State, and hence to foster competition in the situation here before us would be beneficial instead of detrimental to the public, whose interests are so vitally involved. In the instant case, however, there could be no local competition over the debated route on account of closed busses by Gulf. But, conceding that there would be, competition brings about cheaper prices and better service. This is recognized by the Mississippi Motor Carrier Act of 1938, Section 7636, Code 1942, where it is provided: "Nothing in this Act shall confer any proprietary or property rights in the use of the public highway."

Section 7641, Code 1942, provides: "If the Commission shall find the proposed operation justified, and that the applicant is fit, willing and able properly to perform the services proposed and to conform to the provisions of this Act and of the requirements, rules and regulations of the Commission, it shall issue a certificate to the applicant, subject to such terms, limitations and restrictions as the Commission may deem proper, authorizing in whole or in part the operations covered by the application. If the Commission shall find the proposed operation not justified the application shall be denied."

What Gulf is seeking is through travel on its own lines to passengers desiring to enter and to leave Jackson. Of similar service the Interstate Commerce Commission in Santa Fe Trail common carrier application, 21 M.C.C. 725, said this: "Protestants also minimized the importance to applicant and its affiliates of their being able to offer through service to final destination. They urged that in view of necessity for rest and lunch stops, and the usual changes in equipment, the transfer of the passengers from one line to another is not an inconvenience of any consequence. In theory that may be correct, but there is some evidence that a transfer from one line to another is looked upon by prospective passengers as an inconveience best to avoid. And in a measure, the presumption may be justified. A change from one line to another may involve the transfer from one station to another; it always involves a transfer of baggage, which, even if attended to by carrier employees, may engender a feeling of uneasiness and responsibility on the part of the passengers to see that it is properly done and nothing overlooked. If baggage is lost or damaged, or other claims incurred, the difficulty of obtaining a quick and satisfactory adjustment is increased by the necessity of dealing with more than one carrier."

In that case, a railroad owned bus carrier asked for duplicate routes over the lines of other carriers so as to provide a direct, through service on its own lines, just as here. And the Interstate Commerce Commission granted the application.

The bus stations of connection lines may be a mile apart in certain communities and the weather bad, and the bus passengers unfamiliar with the communities, entailing all kinds of inconvenience, discomfort, and hazards, especially at night. This condition could be avoided here as the Gulf offered a continuous line service under its own management with only one probable change of busses at Louisville, where an empty bus would be awaiting each arriving bus for convenient transfer of passengers, when necessary. And also it would increase the convenience of transfer of baggage, by averting possibilities of its loss and facilitating its reaching the destination at the same time the passenger arrives there. It would also simplify and facilitate adjustments of claims, by limiting the adjustment to one line.

The argument against the grant of the proposed certificate to Gulf, that, if granted, the doors would be open to Tri-State, inviting it to seek duplicate certificates up and down Highway 15 over which Gulf now operates, in my opinion, is a non sequitur. When Tri-State can offer such an imposing array of reasons to support its claim that public convenience and necessity required such additional service on Highway 15, then, in my opinion, they should be granted a franchise there. However, it must be borne in mind that the duplication here is not for service but merely of the use of the highway. Service at local points on the controverted portions of the highways is excluded by the closed doors. Similar duplicate use of highways exists over many of them in this State, and is in harmony with the previous policy of the Public Service Commission, which, in many cases, has recognized such duplication as a useful auxiliary to the progressive development of passenger transportation in Mississippi.

Let us consider what arbitrary may be said to mean. The Supreme Court of the United States, in dealing with necessity of an assessment by the Comptroller of the Currency, held that the word "`arbitrary,' . . . can mean no more than do the other averments that the Comptroller, in reaching his conclusion, `committed grave error of law' in failing to regard the contract as of February 17 as effective." Adams v. Nagle,303 U.S. 532, 58 S.Ct. 687, 693, 82 L.Ed. 999. A Federal decision held that refusal by the Interstate Commerce Commission to consider pertinent evidence and to give substantial evidence the weight it manifestly carries in proceeding to amend rules required to be adopted under a Boiler Inspection Act "would be arbitrary action" subject to review by court. Boiler Inspection Act, 45 U.S.C.A. Sec. 22 et seq.; Baltimore O.R. Co. v. United States, D.C. Ohio, 5 F. Supp. 929, 931. Arbitrary, therefore, is not such a shocking or opprobrious term as justifiably to cause it to become a bete noir to judicial review of an order of an administrative board.

With reference to the argument that if the franchise sought by Gulf were granted here, the addition of the Gulf busses to those now operated by Tri-State over the portion of the highways involved, would cause excessive use and wear and tear of the highway, it occurs to me that Tri-State, or any other bus line similarly situated, should be required to reduce the number of its busses in such an area rather than that the public should be deprived of an improved service by granting another motor carrier the right to the use of the public highways. As quoted above, the statute denies a proprietary right in any bus company to the highways built and maintained by the people of this State at the expense of its people. If any bus line be permitted to overload a particular strip of highway to the exclusion of another seeking to render an improved public service, and thereby successfully deprive the citizens interested in the greater convenience of the latter service, then such bus line, so permitted, would have handed to it a device by which it conceivably could foster its own monopoly, regardless of what the public necessity might be.

I think that the certificate should have been granted by the Public Service Commission as sought by Gulf, and that the circuit court was correct in reversing the order of the Commission, but not in directing the Commission to issue the certificate of convenience and necessity. In this connection, in 51 C.J., Sec. 141, p. 78, the rule is laid down that: "Unless otherwise provided by law, the order should be sustained or reversed by the court by entering its final decree, and not by directing the commission so to do, except when the cause is remanded to the commission for further proceedings. . . . a judgment of reversal does not preclude the commission from subsequently entering a proper order in the premises."

In the Pacific Power and Light Company case (Pacific Power Light Co. v. Federal Power Comm.), 9 Cir., 98 F.2d 835-838, the Federal Circuit Court of Appeals considered the contention of the Federal Power Commission that Congress had not given the court the right to set aside the order in question because, after so setting aside the order and returning the proceedings to the Commission, "the situation is in statu quo ante the annulled order," the court disagreed with this contention and likened the situation to one of reversal of a judgment involving a new trial, saying "The relief granted is not, as claimed by the Commission, a mere futility leading to repetitions of the Commission's identical order and successive identical annulments by us. It will not be presumed that the Board, any more than a trial court, will repeat in its proceedings an error of law so determined by the judicial tribunal reviewing the order under the reviewing provisions of the Act creating the rights."

I therefore respectfully dissent. I think we should affirm the judgment of the circuit court reversing the denial of the certificates by the Commission, and remanding the case to the Commission, but that we should reverse that part of the court's judgment ordering the Commission to issue the certificate.