Atchison v. State Corp.. Comm'n

• Decision Date: 25 October 1939
• Docket Number: No. 4509.,4509.
• Citation: 95 P.2d 676,43 N.M. 503
• Court: New Mexico Supreme Court
• Parties: ATCHISON, T. & S. F. RY. CO.v.STATE CORPORATION COMMISSION et al.

43 N.M. 503

95 P.2d 676

ATCHISON, T. & S. F. RY. CO.

v.STATE CORPORATION COMMISSION et al.

No. 4509.

Supreme Court of New Mexico.

Oct. 25, 1939.

Original prohibition proceeding by the Atchison, Topeka & San Fé Railway Company against the State Corporation Commission of the State of New Mexico and others, wherein an alternative writ was issued. On motion to quash the alternative writ.

Motion sustained, and petition dismissed.

Where railroad instituted prohibition proceeding against State Corporation Commission to assert a private right, Supreme Court did not have jurisdiction to entertain the proceeding against the commission, and if it did have jurisdiction, writ could not be granted where there was no controlling necessity therefor. Const. art. 6, §§ 1-3, 13; art. 11, § 7.

W. C. Reid and E. C. Iden, both of Albuquerque, for petitioner.

Filo M. Sedillo, Atty. Gen., and Fred J. Federici, Asst. Atty. Gen., for respondents.Hanna, Wilson & Brophy, of Albuquerque, amici curiae.

SADLER, Justice.

This case is an echo of efforts over the years to maintain as a common carrier the short railway line of The Santa Fe, San Juan and Northern Railroad Company, (hereinafter designated as the San Juan road), located in Sandoval County, or perhaps better said, to prevent its complete and final abandonment as a common carrier. See San Juan Coal & Coke Company v. Santa Fe, San Juan & Northern Railroad, 35 N.M. 336, 298 P. 663; Taylor, Receiver of Santa Fe, San Juan & Northern Railroad v. Santa Fe Northwestern Railway Company, 38 N.M. 457, 34 P.2d 1102; Santa Fe, San Juan & Northern Railroad v. Helmick, 36 N.M. 157, 9 P.2d 695. In the last-mentioned case, the prohibition proceeding in this court against the Honorable Milton J. Helmick as Judge of the second judicial district sitting in Sandoval County, arose out of Cause No. 1210 on the civil docket of said court, entitled Cleary v. Santa Fe, San Juan & Northern Railroad Company, in which a receiver had been appointed pursuant to 1929 Comp. § 116-406, for the limited purpose of determining whether the company could operate as a common carrier without ultimate loss. We held so much of the order appointing the receiver as employed the sweeping injunction authorized by 1929 Comp. § 32-174, incident to the winding up and dissolution of insolvent corporations was beyond the jurisdiction of the court entering a default decree upon the complaint filed in that case and made our alternative writ permanent against enforcement of the injunctive portions of the decree in their existing form.

Within a few days following the filing of our opinion in that case a second receivership proceeding under our corporation insolvency act was instituted in Sandoval County entitled, Yarborough v. Santa Fe, San Juan & Northern Railroad Company, numbered 1230 on the civil docket of the district court of said county. The two causes appear to have been consolidated at some time following institution of the second suit and carried forward as one proceeding. The petitioner here, The Atchison, Topeka and Santa Fe Railway Company, intervened in the separate suits before consolidation or in the consolidated suits soon after consolidation, asserting title to the steel rails, angle bars, bolts, spikes, etc., located upon the right of way, claiming title thereto under a contract with Cuba Extension Railroad, to whose rights the San Juan road had succeeded. The district court entered a de cree in the consolidated cause on June 5, 1939, in petitioner's favor, adjudging to it “title and right to possession of the materials set out in the petition of intervention”.

Prior thereto and on May 6, 1939, all the assets of the San Juan road had been sold to J. G. Cleary, as trustee. The petitioner herein, The Atchison, Topeka and Santa Fe Railway Company, following the decree in its favor of June 5, 1939, upon its petition of intervention, was about to proceed with the removal from the right of way of the San Juan road of the steel rails and other property to which it was adjudged title and right of possession when the proceeding here drawn in question was initiated before the State Corporation Commission, one of the respondents herein.

The New Mexico Portland Cement Company, a New Mexico corporation, through its attorneys, instituted the proceeding before the State Corporation Commission, naming as respondents the Santa Fe, San Juan and Northern Railroad Company and J. G. Cleary, the trustee-purchaser of all its assets. The petition recited many of the factual matters hereinabove related. In addition, it alleged it was organized for the purpose of manufacturing and dealing in cement and other kindred substances, coal and other minerals, and had acquired and was in the process of acquiring certain mines and properties on the line of the former San Juan road. It further alleged that it was dependent upon the rehabilitation and operation of said railroad in order to ship and market its products, and that the threatened removal from the right of way of said railroad of the steel rails and other property above mentioned, would deny it shipping facilities and adversely affect many citizens of the State of New Mexico. Finally, petitioner asserted the said Cleary to be a trustee-purchaser with power in him and his associates to become a corporation and own, operate, exercise and enjoy the properties, franchises and rights formerly belonging to the San Juan road. Undoubtedly this assertion is based upon 1929 Comp. § 116-501.

Petitioner prayed that the Commission notify the respondents to desist from further efforts to remove said rails and from interfering in any way with the ability of said Cleary, trustee, to operate said railroad in the interests of the public and petitioner; that a hearing upon said petition be held and that upon such hearing a permanent order in conformity to the notice to respondents be entered restraining them from removing said rails or contributing in any way to the abandonment of said line of railroad.

In response to the notice served upon it by the Corporation Commission, the petitioner, The Atchison, Topeka and Santa Fe Railway Company, appeared specially at the public hearing on June 16, 1939, for the single purpose of challenging jurisdiction of State Corporation Commission insofar as said hearing related to it. Thereafter on August 28, 1939, the Commission denied petitioner's plea to the jurisdiction and ordered it and said Cleary, as trustee, to file written answers to the petition on or before September 20, 1939. Thereupon and on September 6, 1939, upon petition of The Atchison, Topeka and Santa Fe Railway Company, one of the respondents before the Commission, we issued our alternative writ of prohibition restraining the Commission and its members from proceeding further with said hearing and citing them to show cause why they should not be permanently thus restrained.

The Attorney General, appearing to said writ for the Commission and its members, has filed in this court a motion to quash the same, setting forth three grounds, viz: (1) that petitioner's application and the allegations of the writ do not state facts sufficient to warrant issuance of the writ; (2) that petitioner has an adequate remedy at law for removal of the proceeding to the supreme court under Article XI, section 7 of the Constitution, should any action be taken adverse to petitioner; and, (3) that the petition and alternative writ show on their face that State Corporation Commission has jurisdiction of the subject matter set forth in the complaint of Portland Cement Company before it and of the petitioner herein.

[1] Within the scope of the first objection to issuance of the writ, (in its nature a general demurrer), although not urged upon us in the written briefs filed prior to submission, is the question of our original jurisdiction to entertain a prohibition proceeding against the State Corporation Commission and the members thereof. If we lack such jurisdiction, its absence cannot be waived. Hence, with the aid of supplemental briefs filed by counsel upon this jurisdictional question, we have given it first consideration. The petitioner, having applied for the writ very naturally affirms original jurisdiction in this court to issue it. The respondents and amici curiae deny that we possess such jurisdiction. We agree with them. Our reasons for such conclusion follow.

Article VI of the State Constitution deals with the judicial department. Sections 1, 2 and 3 thereof read as follows:

“Section 1. The judicial power of the state shall be vested in the senate when sitting as a court of impeachment, a supreme court, district courts, probate courts, justices of the peace, and such courts inferior to the district courts as may be established by law from time to time in any county or municipality of the state, including juvenile courts.

“Sec. 2. The appellate jurisdiction of the supreme court shall be coextensive with the state, and shall extend to all final judgments and decisions of the district courts, and said court shall have such appellate jurisdiction of interlocutory orders and decisions of the district courts as may be conferred by law.

“Sec. 3. The supreme court shall have original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions, and shall have a superintending control over all inferior courts; it shall also have power to issue writs of mandamus, error, prohibition, habeas corpus, certiorari, injunction and all other writs necessary or proper for the complete exercise of its jurisdiction and to hear and determine the same. Such writs may be issued by direction of the court, or by any justice thereof. Each justice shall have power to issue writs of habeas corpus upon petition by or on behalf of a person held in actual custody, and to make such writs returnable before himself or before the supreme court, or before any of the district courts or any...