Cedar Rapids Steel Transp., Inc. v. Iowa State Commerce Commission

• Decision Date: 05 September 1968
• Docket Number: No. 53031,53031
• Citation: 160 N.W.2d 825
• Court: Iowa Supreme Court
• Parties: CEDAR RAPIDS STEEL TRANSPORTATION, INC., Appellee, and Ammana Refrigeration Company et al., Intervenor-Appellee, v. IOWA STATE COMMERCE COMMISSION, Bernard J. Martin, Frank B. Means and Dick A. Witt, Commissioners thereof, Appellants, H & W Motor Express Company and The Rock Island Motor Transit Company, Intervenors-Appellants.

Page 825

160 N.W.2d 825

CEDAR RAPIDS STEEL TRANSPORTATION, INC., Appellee, and Ammana Refrigeration Company et al., Intervenor-Appellee, v. IOWA STATE COMMERCE COMMISSION, Bernard J. Martin, Frank B. Means and Dick A. Witt, Commissioners thereof, Appellants H & W Motor Express Company and The Rock Island Motor Transit Company, Intervenors-Appellants.

No. 53031.

Supreme Court of Iowa.

Sept. 5, 1968.

Rehearing Denied Nov. 12, 1968.

Leo J. Steffen, Jr., Commerce Counsel, and Daniel J. Fay and Susan Thomas, Assistant Commerce Counsel, Des Moines, for appellants.

D. C. Nolan, Iowa City, for intervenor-appellant, H & W Motor Express Co.

Gamble, Riepe, Martin & Webster, Des Moines, for intervenor-appellant, The Rock Island Motor Transit Co.

Robert R. Rydell, Des Moines, and John C. Eichhorn, Cedar Rapids, for appellee.

Clinton H. Moyer and Wm. A. Bergman, Cedar Rapids, for intervenors-appellees, Amana Refrigeration, Inc., The Chandler Co., Cedar Rapids Pump & Supply Co., Hughes Bros. Co.; Altofer Machinery Co.

RAWLINGS, Justice.

Defendant, Iowa State Commerce Commission, ordered plaintiff truck operator permittee to cease unlawful conduct of business, followed by order revoking permit. Plaintiff's two separate district court actions, each seeking relief by certiorari and injunction, were consolidated for trial. Defendant appeals from trial court's decree annulling both orders and enjoining their enforcement.

For convenience, plaintiff, Cedar Rapids Steel Transportation, Inc., and defendant, Iowa State Commerce Commission, will sometimes hereafter be referred to as petitioner, or permittee, and respondent, or defendant commission, respectively. In addition we shall disregard the fact individual commission members are also made defendants.

Petitioner holds a 'truck operator permit' issued by respondent.

Incidentally, though not here relevant, petitioner also possesses a certificate issued by Interstate Commerce Commission classified as interstate irregular route radial authority.

Defendant commission caused permittee's operations to be investigated. There followed adoption of a resolution and giving of notice September 27, 1963, for permittee to appear and show cause why its truck operator permit should not be revoked.

Hearing was accordingly held commencing October 15, 1963. From evidence presented defendant commission found, in substance, since 1963 permittee had, (1) been actively soliciting intrastate traffic; (2) been operating between fixed termini; (3) been operating over relatively regular routes; (4) made regular customer stops for shipments, in some instances five days every week, with no shipper pickup-calls having been made; (5) charged uniform rates; and (6) rarely refused shipments.

Upon this basis defendant commission issued an order, March 9, 1964, to the effect permittee cease and desist operating as a motor carrier between fixed points in Iowa.

Subsequently another investigation was made as to conduct of permittee's trucking business. May 13, 1964, defendant commission by resolution ordered permittee again appear and show cause why its permit should not be revoked. Upon notice given, permittee appeared and hearing was later held.

June 1, 1964, petitioner, by district court action, sought relief by certiorari, and injunction, from the aforesaid cease and desist order. Respondent made return and answered.

Evidence presented at the second revocation hearing revealed permittee's modes and methods of operation, disclosed at the first commission hearing, had not been discontinued. In fact its original terminal at Cedar Rapids had been supplemented by establishment of one in Davenport.

December 21, 1964, defendant commission ordered revocation of permittee's state issued truck operator permit.

January 7, 1965, petitioner filed its second action in district court, this time asking a writ of certiorari issue and injunctive relief be granted relative to respondent's permit revocation order. Again respondent made return and answered.

As heretofore disclosed the two cases brought by petitioner were consolidated and tried to the court upon the transcript of testimony heard by defendant commission, with other explanatory evidence presented. Rule 315, Rules of Civil Procedure.

Decree issued by trial court vacated both of respondent's challenged orders, and permanently enjoined their enforcement. The two cases are likewise consolidated for purpose of this appeal.

Respondent contends trial court erred in, (1) holding petitioner was lawfully operating under a state truck operator permit as an irregular route carrier; (2) finding respondent, in issuing the cease and desist, and revocation orders, acted arbitrarily, capriciously, unlawfully, and without foundation; and (3) reviewing de novo respondent's orders and in granting injunctive relief.

These assigned errors will not be dealt with in the order presented.

I. Examination of petitioner's pleadings discloses, in both cases, relief sought by it is basically that obtainable in certiorari, aided by injunctive relief as an auxiliary remedy. See rules 306--330, R.C.P.

However, trial court held, Code section 474.28 permitted a de novo review of the challenged orders issued by respondent. We do not agree.

The aforesaid statute is clearly confined to 'any railroad' aggrieved by a rule, order or regulation made by defendant commission. Petitioner fails to so qualify.

Furthermore, Code section 327.4 neither expressly nor impliedly serves to afford appellate relief or de novo review of any rule, order or regulation issued by respondent. It provides: 'All control, power, and authority over railroads and railroad companies, motor vehicles and motor carriers now vested in the commission, insofar as the same are applicable, are hereby specifically extended to include truck operators and contract carriers.' If the legislature had intended this act be extended to accord truck operators and contract carriers all appellate rights and remedies granted railroads and railroad companies relative to any rule, order or regulation issued by the commerce commission it could easily have so declared. This it did not do.

To give section 474.28 the construction accorded it by trial court, would require reading into that statute an intent and meaning not therein expressed. The courts of this state do not possess any such prerogative. See Bergeson v. Pesch, 254 Iowa 223, 227--229, 117 N.W.2d 431.

Petitioner asserts State ex rel. Board of Railroad Com'rs v. Holdcroft, 207 Iowa 564, 221 N.W. 191, by analogy, upholds trial court's appellate review of the cases at bar. No useful purpose will be served by an extended analysis of the facts and holding in the cited case. There we were dealing with the right of defendant commission's predecessor to enforce its orders by invocation of judicial action. We find in it no semblance of support for the position here taken by petitioner.

Moreover, section 327.4, quoted supra, is clearly confined to the matter of control, power and authority by defendant commission over motor vehicles and motor carriers operating within the state. See State ex rel. Board of Railroad Com'rs v. Holdcroft, supra. As aforesaid, it does not extend remedial rights or review by appeal to any contract carrier or truck operator aggrieved by a commission adjudication and we cannot read such intent and purpose into the law. See Bergeson v. Pesch, supra.

Without question right of appeal is purely a creature of statute. Carmichael v. Iowa State Highway Commission, Iowa, 156 N.W.2d 332, 335; Merritt v. Interstate Power Co., Iowa, 153 N.W.2d 489, 492; and 2 Am.Jur.2d Administrative Law, section 557, page 366.

And a search of Code chapter 327 fails to reveal appellate review is provided truck operators or contract carriers desiring to challenge an adjudicatory order issued by the state commerce commission.

In addition Code section 325.21 is not here applicable. In the first place it applies only to certificated or motor carriers. Next, it merely provides right of appeal from denial by the commerce commission of an application for certificate of convenience and necessity. At the same time, existence of this statutory enactment serves to disclose the significance attendant upon omission of any appellate rights in chapter 327 of the Code.

We now hold Code section 474.28 is not here applicable.

II. On the other hand, absence of statutory right of appeal does not serve to deprive petitioner of any judicial review. See rule 306, Rules of Civil Procedure, and Appanoose Co. R. Taxpayers Assoc. v. Iowa State Tax Comm., Iowa, 158 N.W.2d 176, 182.

As we said in Hohl v. Board of Education, 250 Iowa 502, 508--509, 94 N.W.2d 787: 'Certiorari is the method of bringing the record of an inferior tribunal before the court for the purpose of ascertaining whether the inferior tribunal or body had jurisdiction and whether its proceedings were authorized. See 19 Iowa Law Review 467. Clearly it comes within the supervisory functions of the appellate courts and is necessary to keep all such bodies within their proper functions and to prevent them from acting in an illegal manner. It is an extraordinary remedy, and the courts may make it Available to all persons who may show a substantial interest in the matter challenged. (Authorities cited.)

'The writ of certiorari is distinguishable from appeal in that certiorari prevents the body performing or exercising a judicial or quasi-judicial function from violating principle of jurisdiction or exceeding the scope of its authority, while appeal is aimed to relieve the individual litigant substantively or from mistake in applying adjective law. Where the body has jurisdiction to determine a question of fact, it is emphatically stated that the writ is not a substitute for appeal, and of course that question is not a ground for certiorari. (Authorities cited.)'

Dealing with a procedural situation not unlike that involved in the cases...