Arkansas statute prohibited transfer of CPCN when reasonably continuous service had not been rendered under authority granted by the certificate prior to application
How later courts described this case
- Arkansas statute prohibited transfer of CPCN when reasonably continuous service had not been rendered under authority granted by the certificate prior to application
Written by the judges who cited it.
The opinion
Lyle Brown, Justice, dissenting. There is no substantial evidence to show that Homer Fisher rendered reasonably continuous service prior to the application for transfer. To the contrary, his own testimony shows the certificate was practically dormant.
Homer Fisher obtained his permit in 1955. He was authorized as a common carrier to transport household goods over the public' highways throughout the State. The only restriction on carriage was “that all shipments must originate or terminate within Mississippi County, Arkansas.” The history of his operation for the past four years indicates that practically all of his hauling was confined to Blytheville and the immediate vicinity. In those operations it should be pointed out that he needed no permit from the Commission. Ark. Stat. Ann. § 73-1758 (Repl. 1957). Transportation within a municipality “or within a commercial zone” is exempt from the permit requirements. The term “commercial zone” refers to any municipality and the area outside its corporate limits which is prescribed by the Interstate Commerce Commission as a commercial zone. Under the commercial zone table established by the ICC, the “Blythe-ville Zone” consists of the municipality and all unincorporated areas within four miles of its corporate limits. Code of Federal Regulations (1942) § 170.16 (3).
As to trips outside the city limits of Blytheville, appellee’s testimony was to the effect that Fisher made twenty-five such trips in 1963, nineteen in 1964, seventeen in 1965, and twenty-four in 1966. But of these trips, appellee offered proof of only four such trips being made beyond the Blytheville area within the last two years. Those consisted of trips to Jonesboro, Fort Smith, Prescott, and possibly West Memphis. In describing all other trips outside of Blytheville city limits, these expressions described the distance of these hauls: “just out of the edge of Blytheville,” and “in the immediate vicinity of Blytheville.”
The majority opinion gives credit to Homer Fisher for trips made within the commercial zone of Blythe-ville. Fisher is clearly not entitled to that credit.
The apparent failure of Homer Fisher to render a reasonably continuous service outside the Blytheville zone may well have been caused, in part, by his limited facilities. He possessed only one truck — a 1948 model which he acquired secondhand; it had a fifteen foot van-type bed, six to seven feet in width; he had no warehouse; he used his home as his headquarters; and he had two part-time employees. Homer testified that he was in the hospital during part of 1965, indicating that his illness affected his business. However, in that year he was able, according to his testimony, to do more local hauling than during any of the reported four years.
I cannot agree with the majority in making a favorable comparison of this case with Arkansas Motor Freight Lines v. Howard, 224 Ark. 1011 , 278 S. W. 2d 118 (1955). Fisher possessed by way of equipment one secondhand truck of ancient vintage; Howard’s rolling-stock consisted of a truck, three tractors, and four semitrailers. Howard maintained a terminal at Pine Bluff; Fisher operated from his home. In the thirteen months prior to the Commission’s hearing in the Howard case, Howard transported thirty-nine shipments into most of the counties in which he was authorized to operate; in a two-year period, Fisher made only four trips under his permit authority.
Finally, I cannot agree with the majority that “when the evidence is evenly balanced the Commission’s views must prevail.” That statement is taken from an opinion written by Chief Justice Griffin Smith. Boyd v. Arkansas Motor Freight Lines, 222 Ark. 599 , 262 S. W. 2d 282 (1953). The statement is clearly dictum. It weakens the salutary attempt of the majority opinion to clarify our scope of review. Furthermore, I cannot conceive it to be the law; in hearings before the Commission, one of the parties has the burden of proof. How can we say the burden is met “when the evidence is evenly balanced?”
Harris, C. J., and George Rose Smith, J., join in dissent.