Atchison, T. & S. F. Ry. Co. v. State Corp. Commission

Decision Date10 February 1969
Docket NumberNo. 8631,8631
Citation79 N.M. 793,450 P.2d 431,1969 NMSC 14
PartiesThe ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, the Chicago Rock Island and Pacific Railway Company, the Colorado and Southern Railway Company, the Denver and Rio Grande Railway Company, and Trans-New Mexico Railway Company, Appellants, v. STATE CORPORATION COMMISSION of the State of New Mexico, Appellee.
CourtNew Mexico Supreme Court
OPINION

MOISE, Justice.

By order issued July 31, 1967 in Ex parte No. 256, Increased Freight Rates, 1967, the Interstate Commerce Commission authorized increased interstate freight rates, effective August 18, 1967. On August 21, 1967, the petitioners, being the railroads operating in the State of New Mexico, filed with the State Corporation Commission their application for authority to make effective corresponding increases in rates applicable to New Mexico intrastate traffic. On September 1, 1967, by order No. 2838 in Docket No. 474, the Commission ordered that an investigation be instituted into and concerning the lawfulness of the rates, charges and regulations proposed by the applicants and, in addition that investigation be made into the lawfulness of all present rates and charges applicable to New Mexico intrastate traffic and, specifically, to the question of whether any violations of the constitution or laws of New Mexico result from the maintenance of three separate and different class rates and conflicting publication of commodity rates.

After a full hearing at which evidence was presented by the applicants and the Commission, order No. 2849 was filed January 24, 1968. By the terms of this order the application seeking an increase in intrastate rates was granted, contingent upon the elimination of the differential between class rates for traffic in the eastern part of the state (being east of the line of the Santa Fe Railway between Raton and El Paso) as compared with the western part, and between the eastern and western parts of the state; and the application of the 'eastern' rate to the entire state. The order was made effective April 1, 1968.

On March 12, 1968, the instant removal proceeding was docketed in this court at the instance of the State Corporation Commission, pursuant to Art. XI, § 7, N.M.Const., wherein it is stated:

'* * * in case of failure or refusal of any person, company or corporation to comply with any order within the time limit therein, unless an order of removal shall have been taken from such order by the company or corporation to the Supreme Court of this state, it shall immediately become the duty of the commission to remove such order, with the evidence adduced upon the hearing, with the documents in the case to the Supreme Court of this state. * * *'

On March 15, 1968, the applicants before the State Corporation Commission, being dissatisfied with the decision as contained in order No. 2849, filed a petition with the Interstate Commerce Commission, seeking an investigation looking to the increasing of New Mexico intrastate freight rates to the extent previously sought by the application in Corporation Commission Docket No. 474. This action was taken pursuant to §§ 13(3) and 13(4) of the Interstate Commerce Act (49 U.S.C.A., §§ 13(3) and 13(4)). The petition was assigned Docket No. 34962, and on May 27, 1968, the Interstate Commerce Commission ordered that an investigation as requested be instituted. This investigation is still pending.

The railroads first contend that by virtue of the investigation granted by the Interstate Commerce Commission, the questions here presented are moot, and accordingly should not be considered by us. The State Corporation Commission does not question the jurisdiction of the Interstate Commerce Commission to investigate intrastate rates. Neither does it contend that the Interstate Commerce Commission may not nullify rates that have been fixed, after full hearing and findings, as required by § 13(4) of the Interstate Commerce Act (49 U.S.C.A. § 13(4)) as held in North Carolina v. United States, 325 U.S. 507, 65 S.Ct. 1260, 89 L.Ed. 1760 (1945). However, it does not agree that the questions are made moot thereby.

While we agree that it is not within the province of an appellate court to decide abstract, hypothetical or moot questions in cases wherein no actual relief can be afforded, City of Birmingham v. Southern Bell Telephone & Telegraph Co., 234 Ala. 526, 176 So. 301 (1937), it is nevertheless equally true that so long as the order appealed from has any vitality and may be given implementation, even temporarily, the case is not moot and is entitled to consideration. Compare Massengill v. City of Clovis, 33 N.M. 394, 268 P. 786 (1928); Roswell Nursery Co. v. Mielenz, 18 N.M. 417, 137 P. 579 (1913); Costilla Land & Development Company v. Allen, 17 N.M. 343, 128 P. 79 (1912); and Pacific Greyhound Lines v. Brooks, 70 Ariz. 339, 220 P.2d 477 (1950).

The facts in this case are quite like those in State ex rel. Utilities Commission v. State, 243 N.C. 12, 89 S.E.2d 727 (1955), except that before the decision was reached in the Supreme Court in that case, the Interstate Commerce Commission had acted to increase intrastate rates so as to place them on a parity with interstate rates, and an effort to enjoin the commission order had proved unsuccessful. State of North Carolina v. United States (D.C.1955), 128 F.Supp. 718, aff'd by per curiam opinion of United States Supreme Court, 350 U.S. 805, 76 S.Ct. 45, 100 L.Ed. 723 (1955).

The North Carolina Supreme Court stated, at p. 731 of 89 S.E.2d:

'* * * In fact the question here posed would not be moot except for the fact that during the period the Commission order was in force the railroads collected approximately one million dollars in freightage.'

We are in accord that if the Interstate Commerce Commission had acted either to supersede or otherwise alter the rates as determined by the State Corporation Commission, nothing would remain for us to consider and, absent some other problem such as was present in the North Carolina case, this removal would be moot. However, such are not the facts in the case here being considered. Order No. 2849 has been removed to this court as provided in Art. XI, § 7, N.M.Const., and this court is there granted the power and has the duty imposed to decide the case on its merits and carry into effect any judgment, order or decree entered by us. The taking of jurisdiction by the Interstate Commerce Commission in no way interferes with our jurisdiction to consider this removal proceeding. See North Carolina v. United States, 325 U.S. 507, 65 S.Ct. 1260, 89 L.Ed. 1760 (1945). While we fully recognize that our decision may ultimately come to naught, the fact remains that in the present posture of the case we have a duty to consider the order herein sought to be enforced.

Neither are we inclined to postpone consideration pending the Interstate Commerce Commission ruling. Its decision turns on the requirements of § 13(4) of the Interstate Commerce Act (49 U.S.C.A. § 13(4)), North Carolina v. United States, 325 U.S. 507, 65 S.Ct. 1260, 89 L.Ed. 1760 (1945), whereas our determination must rest upon whether the requirement of this state's constitution and laws have been satisfied. State ex rel. Utilities Commission v. State, sup...

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