Cochise Sanitary Services, Inc. v. Corporation Commission

• Decision Date: 28 January 1966
• Docket Number: No. 1,CA-CIV,1
• Citation: 410 P.2d 677,2 Ariz.App. 559
• Parties: COCHISE SANITARY SERVICES, INC., also known as Cochise Sanitary Service, Inc., an Arizona corporation, Appellant, v. CORPORATION COMMISSION of the State of Arizona, and Jack Buzard, E. T. Williams, Jr., and John P. Clark, in their official capacity only as members of and constituting the Arizona Corporation Commission, Appellees. 96.
• Court: Arizona Court of Appeals

Page 677

410 P.2d 677

2 Ariz.App. 559

COCHISE SANITARY SERVICES, INC., also known as Cochise Sanitary Service, Inc., an Arizona corporation, Appellant, v. CORPORATION COMMISSION of the State of Arizona, and Jack Buzard, E. T. Williams, Jr., and John P. Clark, in their official capacity only as members of and constituting the Arizona Corporation Commission, Appellees.

No. 1 CA-CIV 96.

Court of Appeals of Arizona.

Jan. 28, 1966.

Rehearing Denied Feb. 24, 1966.

Review Denied March 22, 1966.

Holesapple, Conner, Jones, McFall & Johnson, by Clifford R. McFall, Tucson, for appellant.

Darrell F. Smith, Atty. Gen., Phoenix, by Sidney M. Rosen, Asst. Atty. Gen., for appellees.

CAMERON, Judge.

This is an appeal from the Superior Court of Maricopa County upholding a previous decision of the Corporation Commission of Arizona, cancelling the certificate of convenience and necessity previously held by Cochise Sanitary Services, Inc.

We are called upon to determine whether appellant's business, that of collecting and disposing of garbage, is a public service corporation within the terms of the Arizona Constitution and applicable statutes.

The facts as are necessary for a determination of this matter on appeal are as follows: Following the opinion of the Arizona Supreme Court in the case of Visco v. State of Arizona, 95 Ariz. 154, 388 P.2d 155 (1963), the Corporation Commission of Arizona ordered the appellant and others to appear and show cause why their 'common carrier certificate of convenience and necessity or contract carrier permit, permitting and authorizing the transportation of the above-described property for compensation over public highways should not be revoked, pursuant to Section 40-610, A.R.S. and general orders of the Commission.' The Commission, after notice given and hearing held on 24 April, 1964, issued an order revoking the certificate of convenience and necessity of the appellant, Cochise Sanitary Service, Inc. The order read in part as follows:

'The Commission does not believe that these certificates heretofore issued by it grant to the Respondents unlawful monopolies and the Commission is of the further opinion that the granting of such certificate was not contrary to law or to the Constitution of Arizona or of the United States. The Commission also is of the opinion that the transportation of garbage, trash, refuse, junk and waste material is the carriage of 'property' as the term is used in the statutes and in Article XV, #2 of the Constitution. It is the view of the Commission that the Respondents and approximately 30 other carriers holding certificates of convenience and necessity or contract carrier's permits for the transportation of trash, garbage and refuse, are public service corporations as defined by said Article XV, #2.

'The Commission also believes that the question of technical ownership is not controlling and that persons accumulating and possessing such property (particularly putrescible garbage) are prohibited by law from placing or abandoning it on either public or private property.

'The Commission is of the further opinion that the motor carriage by the Respondents is undertaken for the benefit of consignors or possessors of this property and carriers are paid by consignors for the purpose of accomplishing the act of lawful abandonment of said property, which act is concluded at end of the transportation journey at a public dump, sanitary land fill or other lawful garbage and trash disposed areas. The Commission is also of the opinion that a much greater need exists to regulate public service corporations engaged in carrying trash and garbage than exists for regulating the transportation of other articles of property which do not potentially affect the health, welfare and sensibilities of members of the public.

'The Commission is of the further opinion that the elimination of economic and other regulation of these public service corporations will immediately result in substantially diminishing the value of the plants and investments of the Respondents and will thereafter result in destructive competition which will materially prejudice the welfare of the Respondents' thousands of shippers or customers.

'Notwithstanding the foregoing opinions and beliefs of the Commission, the Commission finds that the operations of the Respondents are identical with or greatly similar to the operations which were described and enjoined by the Findings and Decree of Injunction of the Superior Court of Maricopa County in Cause No. 130907, which Decree was the subject matter of the appeal to the Supreme Court of Arizona in Visco vs. State, No. 7679 , 388 Pac.2d 155. Inasmuch as the Supreme Court of Arizona has reversed said Decree, and because the ultimate judicial power of the State of Arizona is vested in the Supreme Court, the Commission must follow this decision of the Court, Accordingly,

'IT IS HEREBY ORDERED that the following certificates of convenience and necessity are, except as hereinafter indicated, revoked: * * *'

On 11 May, 1964, Cochise Sanitary Service applied for a rehearing and rescission of the decision which was denied on 26 May, 1964. Appellant brought suit in the Superior Court of Maricopa County asking that the decision of the Corporation Commission be rescinded and vacated and that appellant be restored to the status of a public service corporation and as a common carrier of property. Appellee, Corporation Commission, moved to dismiss, and after hearing the motion was granted on 5 November, 1964. Appellants timely prosecuted their appeal.

Appellants first contend that the judgment in the Visco case, supra...