Arizona Corp. Commission v. Pacific Motor Trucking Co.

• Decision Date: 30 December 1964
• Docket Number: No. 7154,7154
• Citation: 97 Ariz. 157,398 P.2d 114
• Parties: The ARIZONA CORPORATION COMMISSION, etc., Reliable Transportation Company, and Arizona Tank Lines, Inc., Appellants, v. PACIFIC MOTOR TRUCKING COMPANY, a corporation, and Consolidated Freightways Corporation of Delaware, a corporation, Appellees.
• Court: Arizona Supreme Court

Page 114

398 P.2d 114

97 Ariz. 157

The ARIZONA CORPORATION COMMISSION, etc., Reliable Transportation Company, and Arizona Tank Lines, Inc., Appellants, v. PACIFIC MOTOR TRUCKING COMPANY, a corporation, and Consolidated Freightways Corporation of Delaware, a corporation, Appellees.

No. 7154.

Supreme Court of Arizona, In Banc.

Dec. 30, 1964.

Rehearing Denied Feb. 2, 1965.

Robert Pickrell, Atty. Gen., and Alvin E. Larson, Asst. Atty. Gen., for appellant Corporation Commission.

Lawrence C. Cantor, Phoenix, for appellants Reliable Transportation Co. and Arizona Tank Lines, Inc.

Evans, Kitchel & Jenckes, Phoenix, for appellees.

SCRUGGS, Justice.

This is an appeal by the Arizona Corporation Commission, Reliable Transportation Company, and Arizona Tank Lines, Inc., from the judgment of the Superior Court of Maricopa county granting a peremptory writ of prohibition against the Arizona Corporation Commission. The Arizona Corporation Commission, the respondent in the trial court, when referred to herein in its individual capacity, will be designated as the Commission. Reliable Transportation Company and Arizona Tank Lines, Inc., the intervenors-respondents below, and the Arizona Corporation Commission, when referred to herein collectively, will be designated as the appellants. Pacific Motor Trucking Company was the petitioner in the trial court and Consolidated Freightways Corporation of Delaware intervened as a petitioner, and both will be referred to herein as appellees.

Prior to January 1, 1955, appellees were the holders of intrastate certificates of convenience and necessity issued by the Commission. These certificates were not restricted to particular classes or types of commodities and authorized appellees to transport freight, express and property.

In February, 1959, appellee Pacific Motor Trucking Company sought to become a party to a petroleum hauling tariff. On March 23, 1959, pursuant to a complaint by appellants Reliable Transportation Company and Arizona Tank Lines, Inc., the Commission directed an order to Pacific Motor Trucking Company to show cause 'why Local Freight Tariff No. 20-A should not be suspended and why petroleum products in bulk should not be excluded from your certificates.'

On May 4, 1959, the Order to Show Cause was heard by the Commission. Appellee Pacific Motor Trucking Company appeared and outlined its efforts to transport petroleum products and advised the Commission that it was ready, willing and able to transport petroleum and petroleum products in bulk in tank vehicles. At the conclusion of the hearing, the Commission took the matter under advisement.

On August 3, 1959, the Commission issued a Notice of Proposed Adoption of Rule and Order providing, in pertinent part, as follows:

'That from and after this date, to-wit: August 3, 1959, no carrier whose certificate reads 'property or freight', or 'freight', 'freight and general commodities', shall transport petroleum products in bulk within the State of Arizona, unless their certificate so reads that they may transport petroleum products in bulk, or unless they show cause to this Commission that they have, prior to August 3, 1959, transported petroleum products in bulk in specialized equipment.'

Pursuant to said notice, appellee Pacific Motor Trucking Company appeared before the Commission at the hearing on September 9, 1959, and protested the adoption of the General Order. Said appellee argued that its failure to have transported petroleum products prior to August 3, 1959, resulted solely from the Commission's failure to approve the company's participation in certain tariffs, a matter which was still under advisement. At the conclusion of the hearing on the General Order, a majority of the Commission ruled that the proposed General Order be adopted.

On October 5, 1959, appellee Pacific Motor Trucking Company petitioned this Court for a Writ of Mandamus and Prohibition requesting that it order the Commission to accept the tariff with Pacific Motor Trucking Company as a participating carrier therein and prohibit the Commission from adopting the proposed General Order. The petition was denied without prejudice on October 27, 1959. On this same day, Pacific Motor Trucking Company filed a petition in the Maricopa County Superior Court praying for an alternative writ of prohibition prohibiting the Commission from in any way denying its right to join as participating carrier in local tariff and prohibiting the Commission from adopting the proposed General Order. The alternative writ was immediately granted by the lower court on October 27, 1959, on an ex parte application. Intervenors joined on both sides, answers were filed to the petition, and on February 10, 1960, Pacific Motor Trucking Company filed a Motion for Summary Judgment. This motion was granted May 31, 1960, in addition to an order granting a peremptory writ of prohibition. The peremptory writ prohibited the Commission from:

'(a) Entering any order or decision as a result of the Order to Show Cause, dated March 23, 1959, which would limit, restrict of delete from Pacific Motor Trucking Company's Certificates of Convenience and Necessity the right to transport petroleum products in bulk; and

'(b) In any way proceeding to deny Pacific Motor Trucking Company's right to join as a participating carrier in Local Freight Tariff No. 20-A; and

'(c) Adopting the Proposed General Order, * * *'

On June 22, 1960, appellants filed a joint Notice of Appeal from the orders entered by the trial court.

Although several assignments of error have been raised by the appellants, the sole issue to be determined on this appeal is the propriety of the Superior Court in issuing a writ of prohibition against the Commission in this case. This Court, in reviewing the granting of a writ of prohibition by a lower court, will not consider as an original proposition whether it would have granted such a writ, but restricts its review to whether the lower court abused its discretion. State Board of Technical Registration v. McDaniel, 84 Ariz. 223, 326 P.2d 348.

In this case, the Commission, pursuant to its Constitutional and statutory authority, attempted to put into effect a General Order to restrict carriers, in the interest of safety, from carrying petroleum products in bulk unless they had prior thereto carried such products in bulk in specialized equipment or unless their certificate or convenience and necessity permitted them to carry such products in bulk.

A.R.S. § 40-610C provides:

'The commission may at any time for good cause suspend a certificate or permit, and, upon not less than five days notice to the grantee of a certificate or permit, and after opportunity to be heard, may revoke or amend a certificate or permit.'

It has long been the rule in Arizona that unless the Commission finds that a common carrier will not furnish the services required by its certificate of convenience and necessity, the Commission cannot lawfully terminate or revoke said certificate, nor can the Commission permit another to invade the field of operation of such a carrier. Tucson Rapid Transit Co. v. Old Pueblo Transit Co., 79 Ariz. 327, ...