Cantlay & Tanzola, Inc. v. Senner, No. 7444

• Court: Supreme Court of Arizona
• Writing for the Court: LOCKWOOD; BERNSTEIN
• Citation: 92 Ariz. 63,373 P.2d 370
• Parties: CANTLAY & TANZOLA, INC., a corporation, Appellant, v. George F. SENNER, Jr., E. T. (Eddie) Williams, Jr., and A. P. (Jack) Buzard, as members of and constituting the Arizona Corporation Commission, Appellees, and Reliable Transportation Company, a corporation, and Arizona Tank Lines, Inc., a corporation, Intervenors.
• Decision Date: 13 July 1962
• Docket Number: No. 7444

Page 370

373 P.2d 370 92 Ariz. 63 CANTLAY & TANZOLA, INC., a corporation, Appellant,
v.
George F. SENNER, Jr., E. T. (Eddie) Williams, Jr., and A. P. (Jack) Buzard, as members of and constituting the Arizona Corporation Commission, Appellees,
and Reliable Transportation Company, a corporation, and Arizona Tank Lines, Inc., a corporation, Intervenors. No. 7444. Supreme Court of Arizona, In Banc. July 13, 1962.
Rehearing Denied Sept. 25, 1962.

[92 Ariz. 65]

Page 371

Minne & Sorenson, Lewis, Roca, Scoville, Beauchamp & Linton, John P. Frank, Phoenix, for appellant.

Robert W. Pickrell, Atty. Gen., Phoenix, Langmade & Langmade, Evans, Kitchel & Jenckes, Earl H. Carroll, Phoenix, for appellees.

LOCKWOOD, Justice.

This is an appeal from a judgment of the Superior Court affirming a decision and order of the Arizona Corporation Commission, hereafter called the Commission, which denied appellant Cantlay & Tanzola, Inc., hereafter called Cantlay, a contract carrier permit. It is a sequel to litigation which terminated in Arizona Corporation Commission v. Reliable Transportation Company, 86 Ariz. 363, 346 P.2d 1091 (1959).

Cantlay, as an interstate common carrier, had transported petroleum products for Texaco, Inc. and other petroleum companies to various points in Arizona. The interstate hauling of petroleum products to Arizona was vastly reduced after 1956 because of the installation of an interstate pipeline between El Paso, Texas and Los Angeles, California, with outlets in Arizona at both Tucson and Phoenix. The petroleum products received at these points were thereafter stored in tank farm facilities and ultimately distributed by motor carriers throughout Arizona on an intrastate basis. In order to meet the change in circumstances and to continue to haul petroleum products within the State of Arizona, Cantlay entered into contracts with seven of the eight petroleum companies doing business in Arizona, and made application to the Commission for contract carrier permits, which were granted. Reliable Transportation Company, and Arizona Tank Lines, Inc., (both corporations and intervenors herein), successfully contested the legality of the Commission, decision and order granting the contract carrier permits in the Reliable case. This court held that under the existing fact situation Cantlay did not change its character as a common motor carrier by proposing to act under the device of a special contract with each company.

After the ruling in the Reliable case, Cantlay entered into a contract with Texaco, Inc. (hereafter designated Texaco) only, (in contrast to the several contracts it had [92 Ariz. 66] entered into with seven petroleum companies in the previous case) to haul petroleum products for this company from the pipelines to: (1) twelve bulk plants of Texaco, (2) the United States Government, and (3) American Smelting and Refining Company, within the State of Arizona. It thereupon applied for a contract carrier's permit to execute this contract with Texaco, which application the Commission denied, Cantlay then brought this action in the Superior

Page 372

Court to set aside the Commission's decision and order. The trial court made findings of fact and conclusions of law upholding the action of the Commission, whereupon Cantlay has appealed.

We have repeatedly held that we will not disturb the findings and judgment of the trial court when supported by substantial evidence, and that all the evidence and inferences therefrom must be reviewed by this court in the light most favorable to sustain the judgment of the lower court. Bohmfalk v. Vaughan, 89 Ariz. 33, 357 P.2d 617 (1960).

However in the very nature of judicial review, this court is not bound by conclusions of law of the trial court as applied to its findings of fact. Combustion Engineering, Inc. v. Arizona State Tax Commission, 91 Ariz. 253, 371 P.2d 879, (1962).

In the instant case the trial court made five findings of fact. ¹ Finding number one is extremely general in nature. It merely indicates that under the provisions of the contract between Cantlay and Texaco here involved, the services to be performed by Cantlay do not differ materially from the services previously performed by Cantlay under a prior contract between the same parties. ² An examination of the record shows that there were certain differences in the services to be performed under these two Texaco contracts. The finding apparently[92 Ariz. 67] acknowledges differences, but asserts that they were not 'significant'. This is so broad and general a statement that we fail to see its significance as a basis for any legal conclusion in this controversy.

We agree with Cantlay's proposition that finding number two is one of mixed finding of fact and conclusion of law. In the Reliable case this court referred to A.R.S. § 40-601, subd. B. (1956). ³ We indicated that such 'a legislative declaration that establishment of one fact is prima facie evidence of another fact is entitled to greater weight than the ordinary presumption arising out of common law rules of evidence.' 86 Ariz. at 374, 346 P.2d at 1098....