Tidewater Express Lines, Inc. v. Public Service Commission

Markell, J., delivered the opinion of the Court. This is an appeal from an order dismissing a bill for injunction to set aside an order of the Public Service Commission which granted the application of City Express, Inc., for permits for the operation of motor vehicles for use in transportation of Coca-Cola products only from Baltimore to Cumberland and from Baltimore to Salisbury by specified routes. The Commission’s order recites that “the public welfare and convenience requires the granting of the permits”. The Commission filed no opinion.

The permits were granted under Art. 56, sec. 312, of the Code, which relates to “contract carriers” (not so called in the statute) and is, it was said at the argument, the only statutory provision that gives the Commission any authority over carriers other than common carriers or indeed over any person not engaged in serving the general public. Plaintiffs are common carriers of freight by motor vehicles. They hold permits under Art. 56, sec. 311. Section 311 refers to intrastate “public transportation” over State roads and other specified roads and streets; section 312 refers to motor vehicles operating “on regular schedules or between fixed termini”, (elsewhere defined by statute), ⁵³⁶ and expressly provides, “The public duties of a common carrier shall not be imposed on the owner of any such vehicle not actually engaged in public transportation”, and contains specific exceptions from the general terms of the section.

The six plaintiffs respectively operate between Baltimore and Cumberland or Baltimore and Salisbury (or over parts of these routes), at least two of them between each of these termini. Eor some years City has been carrying Coca-Cola products, as a private carrier, to as large an extent as possible within the exceptions and without a permit under section 312. Some or all of plaintiffs have, from time to time, carried Coca-Cola products which City could not so carry. In the past there has been protracted litigation between plaintiffs, or some of them, and City before the Commission.

The Commission twice found that City was operating without authority in plaintiffs’ territory and ordered it to cease and desist from doing so. City filed with its application to the Commission, as required by the statute and by the Commission, a copy of its rate and service agreement with the Coca-Cola Company. The statute does not in terms empower the Commission to regulate rates of contract carriers. None of the parties here asserts that the Commission has power to do so.

Coca-Cola Company under the agreement obtains lower rates than it had obtained from plaintiffs, viz., rates on a mileage basis instead of a weight basis. There is substantial evidence that for the special needs of Coca-Cola Company the service of a special contract carrier, such as City, is preferable to common carrier service, (1) in satisfying customer demand for fresh products by prompt delivery, (2) in capital saving of investment in costly stainless steel drums by prompt returns of these containers, (3) in efficiency and economy by shipping most of its products by City. Plaintiffs say, in effect, that these alleged advantages are a sham and the only real advantage is saving in rates, which is a form of destructive competition that section 312 was designed to prevent, and that ⁵³⁷ there has been little or no complaint, especially to the Commission, of service of common carriers in carrying Coca-Cola products. There is, on the other hand, testimony as to complaints by Coca-Cola customers direct to Coca-Cola Company.

Controversy as to the extent of complaints seems largely beside the point. If for the special needs of Coca-Cola Company special contract service is better than common carrier service, this would not necessarily be ground of complaint. If an owner decided to replace a Ford with a Cadillac — or a Lincoln— there would be no occasion to “complain” that a Ford is not a Cadillac — and the Ford dealer would be the first to admit that a Ford is not a Lincoln. The fact that City rates to Coca-Cola Company are lower than common carrier rates is not evidence that the lower rates are unfair, or do not fairly reflect differences between the cost of common carrier service and City service to Coca-Cola Company.

Indeed the testimony as to Coca-Cola’s need for on-the-minute service, whenever and wherever needed, indicates that common carrier service is not adapted to Coca-Cola Company’s needs, and that a common carrier serving all customers alike could not give all — or any — the kind of service Coca-Cola Company needs. In other words, plaintiffs and City are rendering different services and what Coca-Cola Company needs is not common carrier service but the special contract service furnished by City. On any or all of these questions of fact there is substantial evidence against plaintiffs’ contentions. In all these respects the Commission’s action is supported by substantial evidence.

When the Commission’s action is thus supported, we have no occasion to weigh opposing evidence — or to consider whether the evidence would have been legally sufficient to support an opposite conclusion by the Commission. Sections 311 and 315 of Article 56 originated in Chapter 714, of the Acts of 1916, section 312 in Chapter 291 of the Acts of 1924. Section 315 directs the Commission to issue the permit provided for in section 311 ⁵³⁸ if, in the judgment of the Commission, it is deemed best “for pubic welfare and convenience” that the permit be issued. Section 312 provides that motor vehicles operating for hire over improved roads and streets “on regular schedules or between fixed termini . . . shall be subject to the provisions of this subtitle [which includes section 315].” Plaintiffs contend, earnestly and elaborately, that the Commission in regarding the “public welfare and convenience”, under section 315, as the standard for their action under section 312, used an incorrect standard.

They contend that section 312 prescribes no standard and, to save the validity of section 312, there should be read into it “in the public interest” or “not detrimental to the public”, as was done by this court with respect to Art. 23, sec. 405, in Electric Public Utilities Co. v. Public Service Commission, 154 Md. 445 , 140 A. 840 , or “required by, or consistent with, the public interest” which, by Chapter