Farnum v. Public Utilities Commission , 52 R.I. 128 ( 1932 )

This is an application to the Public Utilities Commission by Roy C. Farnum for a certificate to operate motor vehicles as a common carrier between Newport, Rhode Island, and Boston, Massachusetts. In his application petitioner described the desired route and terminal in Newport as follows: "Beginning at the terminal, 21 Long Wharf, thence along Long Wharf to Washington Square, thence to and along Broadway . . . same being part of an interstate route between Newport, R.I., and Boston, Mass."

The cause is here on the appeal of the petitioner from the order of the commission denying and dismissing his application for a certificate to operate jitneys from the terminal on Long Wharf. The reasons of appeal are that said order is unreasonable and improper, (1) because the law requires the granting of the application; (2) because the order is not justified by the evidence.

The issue raised by the appeal, it is admitted, is one of fact not of law. The decision of the commission, as stated therein, was not influenced by considerations of public convenience and necessity or of the control of competition in interstate commerce.

Petitioner was granted a certificate to operate five jitneys and enough more to take care of traffic between Newport and Boston on a route beginning at the junction of Broadway and Mann avenue in Newport, thence northerly along Broadway to the State line.

The members of the commission visited Newport and investigated the traffic conditions. Thereafter a public hearing was held by the commission at which the City of Newport, through its city solicitor, appeared and opposed the granting of the petition for the particular route and terminal requested. In its decision the commission states that it has had previous applications for jitney routes over lower Broadway and Washington Square and that, after lengthy hearings at which all phases of the matter have been thoroughly discussed, it has made a rule that terminals for interstate jitney routes must be established at or north of Mann avenue on Broadway and that interstate jitneys shall be excluded from the area south of Mann avenue.

The traffic situation at and near petitioner's proposed terminal on Long Wharf is peculiar and not easily understood without a view of the locus. Broadway is the only highway running northerly to the State line from the business section of Newport at the junction of Broadway at the point known as Washington Square and Thames street. From the State line Broadway is a wide highway which runs southwesterly to Washington Square; there, for a short distance, it is not so wide, and then again it is of the general width and continues about 500 feet westerly to Thames street. This latter street from the junction at Washington Square is a narrow one-way street running north and south parallel with the water front. There is a line of stores and shops on both sides of Thames street; on the west side are many passageways to docks and ferry landings.

Directly across Thames street from Washington Square and extending into the harbor is a narrow passageway and pier known as Long Wharf. On the sides of this way are private buildings and landing places for boats; at the end is a steamboat landing. Fish is transported regularly by motor trucks from the boat landings to places in and outside of the State. Parking of motor vehicles for thirty minutes is allowed on the east side of Thames street and on the north side of Washington Square north of the junction at Thames street; on the south side of the square are taxicab stands. In addition to the usual local traffic a large tourist traffic passes through Washington Square, thence southerly on Thames street to enter the Ocean Drive.

Petitioner has an option to lease a part of a parcel of land on the side of Long Wharf for a terminal for his jitneys. It appears in the evidence that the Short Line, Inc., the successor to a company which formerly operated trolley cars between Newport and Fall River, Mass., has for some years been operating motor busses through lower Broadway into Washington Square and that this is the only interstate carrier which runs into that area; also that as a result of negotiations between the City of Newport and Short Line, Inc., that company has now in process of construction a terminal building on a street near Broadway and that the use of this terminal will result in the removal of these busses from the lower part of Broadway and Washington Square.

Petitioner claims that the order of the commission discriminates unfairly against him and in favor of the Short Line, Inc. The particular order complained of is intended to prevent additional congestion of traffic in the business center of the city. The issue is primarily not one of the freedom of interstate travel but of the right of petitioner to select a particular terminus for such travel.

The apparent object of petitioner in the selection of this terminal location was to constrain the commission to permit him to run his jitneys through an area now overburdened with traffic. Petitioner says he does not ask for a terminus on Broadway and, so far as appears in the record and from the argument of counsel in this court, he does not want one there, unless he is permitted to select the location. Mann avenue is about a third of a mile north of the junction of Washington Square and Thames street and about 425 feet north of the City Hall on Broadway.

The terminus offered to petitioner is a little farther from Thames street than the new terminus of the Short Line, Inc. To some extent this may be a disadvantage to him; but if such is the result, it is due to the fact that the Short Line, Inc., has been permitted to erect its terminal building in an area which, because of increased traffic, has now become unsuited for interstate terminals and not because of unfair discrimination between the two carriers. It is to be noted that petitioner does not ask to be permitted to establish his terminal in a similar location. He claims the legal right to run his jitneys even farther into the business section than the Short Line, Inc., is permitted to go.

In the absence of national legislation covering the subject, a State, in the exercise of its police power, may regulate interstate vehicular travel upon its highways. Such regulation must, so far as is practical, be uniform and nondiscriminatory.Hendrick v. Maryland, 235 U.S. 610. In Morris v. Duby,274 U.S. 135, it was held that an order of the highway commission of the State of Oregon reducing the maximum load of motor trucks upon a State highway from 22,000 to 16,500 pounds was reasonable and valid and applicable to vehicles engaged in interstate commerce; that the mere fact that a truck company may not be able to make a profit unless it can use a truck with a load weighing 22,000 pounds or more does not make a regulation forbidding such a load-weight either discriminatory or unreasonable, and that, in the absence of fraud or an abuse of discretion, the court must accept the judgment of the highway commission upon this question which is committed to their decision as against merely general averments denying their official finding.

It is a self-evident proposition that modern conditions often require a separation in some areas of local and interstate traffic. Such a separation, if reasonable and made in good faith, can not properly be regarded as discriminatory.

The commission has investigated the local traffic conditions and we are satisfied that they have acted in good faith. Has there been an abuse of its discretion? We think not. Petitioner does not claim that his business will suffer if he leaves his in-coming passengers at Mann avenue. His loss of profit, if any, will result from his inability to pick up out-going passengers within the forbidden area. But this consideration is not controlling if the order of the commission is reasonable as it is in the case at bar.

For the reasons stated the appeal of the petitioner from the order denying his application is denied and dismissed and the order appealed from is sustained.