State ex rel. State Corp. Commission v. Zinn

• Decision Date: 14 March 1963
• Docket Number: No. 7348,7348
• Citation: 1963 NMSC 48,72 N.M. 29,380 P.2d 182
• Parties: , 48 P.U.R.3d 470 STATE of New Mexico ex rel. STATE CORPORATION COMMISSION and G. Y. Fails, Ingram B. Pickett and Murray E. Morgan, Members of said Commission, Relators, v. Honorable Frank B. ZINN, Judge of the Eleventh Judicial District of the State of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 182

380 P.2d 182

72 N.M. 29, 48 P.U.R.3d 470

STATE of New Mexico ex rel. STATE CORPORATION COMMISSION and G. Y. Fails, Ingram B. Pickett and Murray E Morgan, Members of said Commission, Relators, v. Honorable Frank B. ZINN, Judge of the Eleventh Judicial District of the State of New Mexico, Respondent.

No. 7348.

Supreme Court of New Mexico.

March 14, 1963.

Rehearing Denied April 16, 1963.

Earl E. Hartley, Atty. Gen., J. E. Gallegos, Norman S. Thayer, Asst. Attys. Gen., Santa Fe, for relators.

Verity, Burr & Cooley, Joel B. Burr, Jr., Farmington, Seth, Montgomery, Federici & Andrews, Richard S. Morris, Santa Fe, Jack K. Currey, Abilene, Tex., for respondent.

MOISE, Justice.

This is an original proceeding in prohibition in which the State Corporation Commission, as relator, seeks to prohibit the respondent, District Judge, from considering whether or not relators should be restrained and enjoined form proceeding with a hearing called to determine whether McWood Corporation was engaged in the transportation of property for hire in New Mexico and subject to the jurisdiction of relator.

The pleadings herein disclose that in Cause No. 31876, entitled McWood Corporation, a corporation, v. State Corporation Commission, et al., on the docket of the district court of Santa Fe County, being a declaratory judgment action in which respondent has been designated to preside, the same issue as relators are considering is pending for determination. It is argued that respondent's jurisdiction was acquired before any jurisdiction was obtained by relators, and by virtue of that fact is exclusive. Respondent denies that relators have any jurisdiction to determine the issue, and asserts that if they do, it is not exclusive, but is concurrent with that of respondent. Respondent also claims a right to entertain an application for a temporary restraining order and preliminary injunction as ancillary to his general jurisdiction to decide the issue in the cause pending before him.

At the outset, we are presented with a proposition to the effect that relator, being a constitutionally created arm of the government, is immune from suit at the instance of private parties in the district court and, accordingly, no jurisdiction was or could be acquired over it in cause No. 31876 on the docket of the district court of Santa Fe County. However, we do not deem an answer to this question is necessary to a disposition of the case, and accordingly we refrain from entering upon a discussion of this issue. See Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796.

As we view the problem, the controlling question is whether the respondent has jurisdiction to pass upon the issues present in the cause pending before the court, including whether or not relator should be enjoined from considering the matters pending before it.

In two recent cases, State ex rel. Kermac Nuclear Fuels Corporation v. Larrazolo, 70 N.M. 475, 375 P.2d 118; and State Game Commission v. Tackett, 71 N.M. 400, 379 P.2d 54, and not yet reported, we have had occasion to review our cases on prohibition. It would serve no purpose to repeat this task. Any who are interested may refer to the cases mentioned for the analysis made by the court. However, summarizing what was said in State ex rel. Kermac Nuclear Fuels Corp. v. Larrazolo, supra, we are clear that if a court has jurisdiction of both the subject matter and the parties, ordinarily prohibition will not issue. Two exceptions where prohibition would issue even though jurisdiction of parties and subject matter were present are recognized. One is where a court is acting in excess of jurisdiction, and the other is in a situation where under our power of superintending control refusal to act would cause irreparable mischief, exceptional hardship, undue burdens of expense, or where the burdens of appeal would be grossly inadequate. We approach the problems here present with the foregoing rules in mind.

Relator argues that it is a constitutional body deriving its power from the provision of Art. XI, Sec. 7. It is further the position of relator that the powers granted to it are excepted from the jurisdiction of the district courts in Art. VI, Sec. 13, wherein it is stated that 'The district court shall have original jurisdiction in all matters and causes not excepted in this Constitution * * *.'

The powers granted to the commission in Art. XI, Sec. 7, N.M.Const., so far as relied on by relator herein, are as follows:

'The commission shall have power and be charged with the duty of fixing, determining, supervising, regulating and controlling all charges and rates of railway, express, telegraph, telephone, sleeping-car, and other transportation and transmission companies and common carriers within the state; * * * The commission shall also have power and be charged with the duty to make and enforce reasonable and just rules requiring the supplying of cars and equipment for the use of shippers and passengers, and to require all intrastate railways, transportation companies or common carriers, to provide such reasonable safety appliances in connection with all equipment, as may be necessary and proper for the safety of its employees and the public, and as are now or may be required by the federal laws, rules and regulations governing interstate commerce. The commission shall have power to change or alter such rates, to change, alter or amend its orders, rules, regulations or determinations, and to enforce the same in the manner prescribed herein; * * *.'

Respondent meets the argument by asserting that the issue present before the relator has nothing to do with charges or rates, which it is claimed is the limit of the constitutional grant of power so far as transportation companies and common carriers are concerned, and asserts further that no power is granted to determine who is and who is not a transportation company or common carrier for whom power is granted to 'fix, determine, supervise, regulate and control all charges and rates.'

Although the power to determine the extent of the commission's jurisdiction is not expressly given in the Constitution, we take note of the powers and jurisdiction over motor carriers granted to relator by statutes passed by the legislature. By Sec. 64-27-1(b), N.M.S.A.1953, the legislative purpose is announced:

'It is hereby declared to be the purpose and policy of the legislature in enacting this law to confer upon the commission the power and authority to make it its duty to supervise and regulate the transportation of persons and property by motor vehicle for hire upon or over the public highways of this state in all matters whether specifically mentioned herein or not so as to: (1) Relieve the existing and all future undue burdens on the highways arising by reason of the use of the highways by motor vehicles; (1) protect the safety and welfare of the traveling and shipping public in their use of the highways; (3) carefully preserve, foster and regulate transportation and permit the co-ordination of transportation facilities.'

In Sec. 64-27-1(a), N.M.S.A.1953, the term 'motor vehicle' is defined and in Sec. 64-27-2, N.M.S.A.1953, 'common carrier' is defined. The powers and duties of relator regarding common carriers are specified in Sec. 64-27-6, N.M.S.A.1953, as follows:

'The commission is vested with power and authority, and it shall be its duty, to supervise and regulate all common motor carriers of property or passengers as defined in section 2 [64-27-2] of this act, and to fix, alter, regulate and determine just, fair, reasonable and sufficient rates, fares, charges and classifications; to regulate the facilities, accounts, service and safety of operations of each such carrier, to regulate operating and time schedules so as to meet the needs of the public, and so as to insure adequate transportation service to the territory traversed by such carriers, and so as to prevent unnecessary duplication of service between common motor carriers; to require the filing of annual and other reports, tariffs, schedules and other data by such common motor carriers, and to supervise and regulate such common motor carriers in all matters affecting the relation between such carriers and other common carriers, to the end that the provisions of this chapter may be fully and completely carried out. The commission shall have power and authority, by general order or otherwise, to prescribe rules and regulations in confomity with this act applicable to any and all such common motor carriers, and to do all things necessary to carry out and enforce the provisions of this act.'

Sec. 64-27-19, N.M.S.A.1953, contains the provisions and powers of the commission applicable to contract motor carriers.

Sec. 64-27-5, N.M.S.A.1953, provides that common carriers shall not operate on the highways of the state except in accordance with the act. Sec. 64-27-16, N.M.S.A.1953, provides the same as to contract motor carriers. Sec. 64-27-8, N.M.S.A.1953, makes it unlawful 'for any common motor carrier to operate within this state without first having obtained from the commission a certificate of public convenience and necessity,' and sets forth the procedure to be followed to acquire such a certificate.

'Contract motor carrier of property' is defined in Sec. 64-27-14, N.M.S.A.1953, Sec. 64-27-17, N.M.S.A.1953, makes it unlawful for a contract motor carrier to operate in this state without first obtaining a permit to do so from relator, and sets up the procedure for applying for and obtaining such a permit.

Sec. 64-27-38, N.M.S.A.1953, appears to be the basis for the present proceeding before relator. The section reads as follows:

'Whenever the commission shall determine to conduct an investigation, either upon or without complaint, as in this act provided for, it shall fix a time and place for public hearing of the matters under investigation. Before proceeding to make...