Bosley v. Quigley

Collins, J., delivered the opinion of the Court. These are two appeals from two orders of the Circuit Court for Prince George’s County overruling the-demurrers of the public Service Commission of Maryland, the Pennsylvania Greyhound Lines, Inc., (Greyhound) and the Capital Transit Company, (Capital Transit) appellants here, defendants below, to two separate bills of complaint of the appellees, George D. Quigley, (Quigley) and Safeway Trails, Inc. (Safeway), plaintiffs below, against the Public Service Commission of Maryland. As the Public Service Commission was the only original defendant, petitions were filed by the Pennsylvania Greyhound Lines, Inc. (Greyhound) and Capital Transit Company (Captial Transit) to intervene as parties defendants in this case, which petitions were granted by the Chancellor. ⁴⁹⁶ As these cases come up on demurrers it is necessary that we recite the allegations of the bills in detail. The bill of complaint of Safeway makes many allegations: It is a corporation under the laws of the State of Maryland.

Complainant is a common carrier of passengers by motor bus over specified routes between Washington, D. C. and New York City with certain intrastate operating authorities within the State of Maryland. Among other routes within this state, the complainant has authority from the Public Service Commission to operate from Baltimore to the Maryland-District of Columbia line via Route No. 1 and return with the following restriction, “Interstate only except between Baltimore and the southwest side of Hyattsville.” Safeway in an effort to obtain appropriate authority from the Public Service Commission of Maryland to provide local service over the Washington-Baltimore Boulevard, for which service there is an existing demand and need, filed an application with the Public Service Commission of Maryland on October 1, 1946, requesting the following authority: “Applicant requests removal of restriction in certificate No. 1 in order that it may pick up and discharge passengers between Baltimore, Maryland and the Maryland-District of Columbia line via U. S. Route No. 1 and all intermediate points (32.2 miles). Authority is also requested to serve Savage, Maryland and Elkridge, Maryland, as off-route points.” The bill further alleges that the Public Service Commission as provided by Section 388 .of Article 23, of the Code, has “jurisdiction and power * * * to grant the permission and approval herein spécífied whenever it shall, after due hearing, determine that such construction or such exercise of the franchise or privilege is necessary or convenient for the public service.” The application of Safeway hereinbefore mentioned was assigned Case No. 4805 by the Public Service Commission of Maryland and was assigned for a hearing before that Commission with the petition filed on behalf of the public which petition (Quigley petition)' was as ⁴⁹⁷ signed Case No. 4795. Seven days were consumed in the hearing on the consolidated petitions.

Hundreds of bus riders interested in obtaining local service by Safeway over the Washington-Baltimore Boulevard appeared at the hearing and for the sake of convenience fifty-three representatives, witnesses, testified in support of Safeway’s application and the people’s (Quigley) petition either in their own rights or in an official capacity. Safeway offered thirty-four exhibits including traffic studies of the inadequate local service being rendered by Greyhound and also a traffic study showing available space on the buses of Safeway, which buses could be used to advantage in providing local service over the Washington-Baltimore Boulevard. They also offered economic exhibits showing substantial increases in industry and population and material change in transportation requirements along the Washington-Baltimore Boulevard since 1940. The two cases before the Public Service Commission are alleged to be replete with overwhelming testimony in support of the existence of a public demand and need for local service by Safeway and the continued inadequacy of local service offered by Greyhound, the only common carrier of passengers authorized to use a public highway between College Park and Baltimore in local service.

The bill alleges that on January 22, 1947, two members of the Public Service Commission issued an order, Number 43245 in cases 4795 and 4805, supra, which found, contrary to law and fact, that public convenience would not require the removal or modification requested. This order not set out in the bill of complaint was as follows: “Whereas, protests against the removal or modification of the aforesaid restrictions having been made to the Commission and the said proceedings have come on to be heard, after due notice, and it being the opinion and finding of the Commission, after due hearing, that the public welfare and convenience do not require the removal or modification of the aforesaid restrictions, the Commission hereby expressly confirming the con ⁴⁹⁸ elusions reached by it in similar proceedings in 1940 as expressed in its opinion filed on June 20th, 1940, the Commission now being of the opinion, as it was then, that should the public convenience require the operation of more trips than are now operated by existing carriers authorized to provide local service along the route and in the areas involved, the need could be met more effectively by requiring that such additional needed service be furnished by carriers that are already authorized to provide local service.” The bill alleges that the Commission by this order abused its discretion and acted arbitrarily in denying the petitions of Safeway and Quigley. Quigley asked for and received a re-hearing which provided an opportunity for the parties of record to offer oral argument before the Commission. Safeway through its counsel participated in this oral argument.

Order Number 43377 in Case Number 4795, passed March 12, 1947, not set out in the bill of complaint, follows: “Whereas, it is the opinion and finding of the Commission after due consideration of the oral argument that was offered as aforesaid, that no change in or modification of its said Order No. 43245 is justified, particularly as it appears from reports of observations made by members of the Commission’s staff that the intrastate motor bus service along the Washington Boulevard between Baltimore and the Maryland-Distriet of Columbia line, which has been the subject of controversy in this case, is adequate.” The bill further alleges that such conclusion by the Commission on unsworn evidence by members of its staff was not only contrary to the overwhelming testimony presented by witnesses who testified under oath and were subject to cross-examination, but is contrary to the rules of evidence and contrary to law in that the Commission’s findings are not based upon alleged facts in the record in the proceeding. It is not alleged in the bill that Safeway objected to the reference to observations by members of the Commission’s staff or asked leave to cross-examine the members referred to. ⁴⁹⁹ It is further alleged that the record in the proceeding contains undisputed evidence that Safeway has been continuously operating in interstate and intrastate commerce in the transportation of passengers, baggage and express over U. S. Highway No. 1 between Washington and Baltimore since 1937 when it succeeded to the rights of its predecessor, Short Line, Inc., of Pennsylvania, to which corporation the initial certificate was issued, May 17, 1933. From June 4, 1942, to September 30, 1945, Safeway participated in providing an unrestricted coordinated local passenger service by motor bus with Greyhound between Baltimore and College Park over U. S. Highway No. 1. As a: result of the local services by Greyhound and Safeway during that period the bus-riding public between the Maryland-District of Columbia line and Baltimore enjoyed the adequate bus service to which they are rightfully entitled.

The Maryland Public Service Commission pursuant to a requirement of the Office of Defense Transportation authorized complete local transportation between College Park, Maryland and Baltimore in addition to the restricted intrastate service. This authority was withdrawn on September 30, 1945, due to the reduction of War Emergency authority in the Federal Government. As a condition to a compliance with the Office of Defense Transportation orders, allocating frequency of service and requesting interchangeability of tickets, Greyhound had demanded and received from Safeway an agreement that it would not file an application for a certificate to continue the complete local service prior to one year following the expiration of the Office of Defense Transportation authority. Safeway’s application was filed at the earliest date consistent therewith, October 1, 1946, and to the date of the bill of complaint Greyhound has been the only motor bus carrier authorized and required to provide adequate local service between College Park and Baltimore.

The need of the local Service of both Greyhound and Safeway is greater than during the Emergency ⁵⁰⁰ War period. The population and industry along the Washington-Baltimore Boulevard has increased at least fifty per cent since June 20, 1940. Greyhound is owned and controlled fifty per cent by Pennsylvania Eailroad Company and fifty per cent by the Greyhound Corporation. Each of these corporations has large financial resources and Greyhound earned a net revenue after taxes of $2,214,069.00 during the year 1946.

The maximum diversion of revenue which would occur by approval of the applications herein would be less than .0075% of the gross revenue of Greyhound which would be largely offset by reduction in the operating expenses, and would not reduce its earnings below a liberal return on the valuation of its property. The total use of buses by local passengers is substantially reduced by reason of inadequate present service of Greyhound and the confusion with respect to the non-availability of the buses of Safeway, and the granting of the petitions would substantially increase the total traffic transported by both carriers and would result in an increase of the revenues for such service available to Greyhound. Safeway could use its equipment which is operating at present over the Washington-Baltimore Boulevard, far below normal capacity, to provide the necessary service without additional expense. The bill further alleges that the public has been repeatedly inconvenienced by failure of Greyhound to provide adequate local service since October 1, 1945.

Both white and colored passengers along the highway have been insulted and abused by the bus operators of Greyhound, who have even failed to pick up passengers on the schedules in the printed time tables. As a result of the public demand for the services of Safeway and complaints to the Public Service Commission, Greyhound began the operation of several buses without a bona fide intention of improvement for the purpose of developing a statistical sufficiency of service. As a result of the refusal of Safeway’s petition, it has been compelled to operate buses in intrastate and interstate service on ⁵⁰¹ U. S. Highway No. 1 particularly between Hyattsville and Baltimore with loads substantially less than normal capacity. The termination of its local services resulted in a decline in revenues equal to $10,000.00 per month and a heavy loss since October 1, 1945.

The refusal of Safeway’s petition impairs its ability to provide its authorized intrastate and interstate services and constitutes a material burden on interstate commerce. On the day when the Commission denied the relief sought by Safeway and Quigley, it directed an order to Greyhound finding that the operators of its buses had been guilty of discourtesy and a failure to pick up passengers, and the operation of the terminals of the company with respect to information was not satisfactory, and the attitude and conduct of employees of Greyhound was below standard. The Commission directed Greyhound to remove all possible cause of complaint and to provide the public at all times with satisfactory service. Similar action had been taken by the Commission when earlier public complaints had been made, without remedial action by Greyhound.

In view of the record in these proceedings the Public Service Commission erred as a matter of law in its findings of January 22, 1947 aforesaid. The facts of record in the 1940 proceedings referred to in the Commission’s order, were substantially different from the facts of record here. The Commission erred as a matter of law in denying Safeway’s petition. The granting of this petition would serve the best interests of the public as required by the Public Service Commission Law of Maryland.

The petition asked, (1) That Order No. 43245 of the Public Service Commission dated January 22, 1947, be vacated, set aside and declared unlawful because of want of power and authority in the Commission to make this order, because it is contrary to law in that the Commission abused its discretion and acted arbitrarily and capriciously in denying the complainants’ petition. The bill of complaint also asked, (2) That the Court find that the operation proposed by the application in cases No. ⁵⁰² 4795 and . 4805 was justified and demanded by public convenience or necessity and that the Commission acted unlawfully in denying the petition of the complainant. The bill also asked, (3) for other and further relief. The bill of complaint of George D. Quigley (Quigley) alleged that he was a citizen of the State of Maryland, a resident of Anne Arundel County, and a user of motor bus service along the Washington-Baltimore Boulevard between Baltimore and the Maryland-District of Columbia line and presents the action on his own behalf and on the behalf of other users of motor bus service on the Washington-Baltimore Boulevard similarly affected.

He alleges that in his own behalf or on the behalf of others he filed a petition with the Public Service Commission seeking a renewal of intrastate bus service by Safeway as specified in Safeway’s bill of complaint. He says that this petition was accompanied by the signatures of more than 1,000 persons in addition 'to endorsements of civic organizations and the municipal authorities of all incorporated towns in Prince George’s County which border on the highway involved and this petition was also endorsed by the County Commissioners of Howard County. His allegations that the service of Greyhound was wholly inadequate and inconvenient were substantially the same as those contained in Safeway’s bill. All of the allegations similar to those made by Safeway will not be detailed again here.

Some pertinent allegations which were not contained in Safeway’s bill follow: The Greyhound continually passed up passengers who were waiting for a long time along the highway without adequate protection in all kinds of weather. When Greyhound buses stopped they were usually so crowded that the tired passengers were compelled to stand up during the entire trip. Although Greyhound for the purpose of a lack of profit, ran double and extra buses, these doubles and extras failed to pick up the waiting passengers. The public has received discourteous and insulting treatment from the employees of Greyhound.

Greyhound has stated that it was unable to meet ⁵⁰³ the public demand because it had difficulty in obtaining equipment and personnel. Greyhound utterly failed to produce any evidence and not a single community or organization appeared in its behalf. The Public Service Commission arbitrarily ignored and disregarded the testimony of all the witnesses. During the hearing the defendant, Charles B. Bosley, stated on a certain day subsequent to the original hearing he and the defendant, Arthur H. Brice, had seen a number of Greyhound buses running between College Park and Catón Avenue, near Baltimore, as proof of a presumed adequate service on the part of the Greyhound company.

No opportunity was afforded to cross-examine these two defendants. It is not alleged in the bill that opportunity to cross-examine was asked. The defendants have utterly failed and refused to recognize the convenience of the public. During a snow storm many persons were left standing in freezing weather because the Greyhound buses were either too crowded or unable to get through, while Safeway buses were prevented from picking up these passengers and carrying them to their homes.

In December, 1945, Greyhound employees went on strike. It was only through good fortune that Safeway facilities were available at a great loss, to serve the public. Unless Safeway is permitted to make use of some of its half-empty buses proceeding along the Boulevard it will be necessary to withdraw some of these facilities and no longer will they be available for the public use. It characterizes the action of the Commission as arbitrary, unlawful, unreasonable, and contrary to the public necessity.

It states that there exists an urgent public need for the granting of the petition of Safeway. It asks (1) That the order of the Public Service Commission denying the application of Safeway be vacated, set aside, annulled, and declared to be unreasonable and unlawful. It asks (2) That the Public Service Commission be directed to issue an order granting the relief