Corporation Commission of State of Arizona v. Peoples Freight Line, Inc., Civil 3219

• Decision Date: 23 November 1932
• Docket Number: Civil 3219
• Citation: 41 Ariz. 158,16 P.2d 420
• Parties: CORPORATION COMMISSION OF THE STATE OF ARIZONA and AMOS A. BETTS, CHARLES R. HOWE and LOREN VAUGHN, as Members of the Corporation Commission of the State of Arizona, Appellants, v. PEOPLES FREIGHT LINE, INC., a Corporation, Appellee
• Court: Arizona Supreme Court

16 P.2d 420

41 Ariz. 158

CORPORATION COMMISSION OF THE STATE OF ARIZONA and AMOS A. BETTS, CHARLES R. HOWE and LOREN VAUGHN, as Members of the Corporation Commission of the State of Arizona, Appellants, v. PEOPLES FREIGHT LINE, INC., a Corporation, Appellee

Civil No. 3219

Supreme Court of Arizona

November 23, 1932

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

Mr. K Berry Peterson, Attorney General, Mr. Charles L. Strouss Assistant Attorney General, and Mr. Linus R. Fike, for Appellants.

Messrs Sloan, McKesson & Scott, for Appellee.

OPINION

LOCKWOOD, J.

This is an action brought in the superior court of Maricopa county to vacate an order of the corporation commission granting a certificate of convenience and necessity for the operation of a motor vehicle freight line between Phoenix and Tucson to the Tarbell Transfer Company, a copartnership. The plaintiff is the Peoples Freight Line, Inc., which at the time of the hearing of the application before the commission was already operating such a line over that route, and which appeared and protested against the application. The case was heard before the trial court sitting without a jury, and findings of fact were made to the effect that the Peoples Freight Line, Inc. was already rendering full, adequate, and satisfactory service at the time of the application of the Tarbell Transfer Company as aforesaid, and that the public convenience and necessity did not require the issuance of a certificate to the latter. As a conclusion of law from such findings the court held that the order of the commission granting the certificate to the Tarbell Transfer Company was unreasonable, and the judgment vacated and set it aside. From this judgment the commission has appealed.

In order to operate a motor vehicle as a common carrier for hire within the state of Arizona, it is necessary that the operator first secure from the corporation commission a certificate of necessity and convenience. Northeast Rapid Transit Co., v. City of Phoenix, ante, p. 71, 15 P.2d 951 (just decided). Section 736, Rev. Code 1928. The section last cited lays down the principle which shall govern the commission in the issuance of such certificate in the following language:

". . . No certificate shall issue until the commission finds that the public convenience and necessity requires it. . . ."

The decision of the commission on this point, however, is not final, for section 720, Revised Code 1928, reads in part as follows:

". . . Any party in interest, or the attorney general on behalf of the state, being dissatisfied with any order or decision of the commission, may within thirty days after a rehearing is denied or granted, and not afterwards, commence an action in the superior court of the county in which the commission has its domicile, against the commission as defendant, to vacate and set aside any such order or decision on the ground that . . . such order or decision is unlawful, or that any regulation, practice, act or service fixed in such order is unreasonable, . . . The trial shall conform, as near as may and except as herein otherwise prescribed, to other trials in civil actions. Judgment shall be rendered affirming, modifying, or setting aside such original or amended order. Either party to said action, or the attorney general on behalf of the state, within thirty days after the rendition of the judgment of the superior court, may appeal to the supreme court. In all trials, actions and proceedings the burden of proof shall be upon the party adverse to the commission or seeking to vacate or set aside any determination or order of the commission to show by clear and satisfactory evidence that the same is unreasonable or unlawful."

It will be seen, upon examining the language of this section, that the proceeding is not an appeal from the decision of the commission, but it is a new and independent action. The case is heard de novo upon such evidence as may be proper, and not merely upon a review of the evidence taken before the commission. Such being the case, the trial court is not bound by the rule followed on an appeal by this and by most appellate courts to the effect that, if any reasonable evidence sustains the order of a lower tribunal, an appellate court will not consider and review the weight of the evidence, or the inferences drawn therefrom by the trial court. The superior court in this proceeding had the right to form its own judgment as an independent tribunal as to the conclusion to be drawn from the evidence, subject only to the rule laid down in section 720, supra, that the burden of proof is on the plaintiff to show by clear and satisfactory evidence that the order of the commission is unreasonable or unlawful.

There are some states, it is true, which hold that a trial court reviewing the action of a commission authorized to regulate public service companies is bound by the rule which we have referred to above as being followed by us in appeals, but it will be found upon examination of the cases cited by defendant to this effect that the proceedings involved were in the nature of appeals rather than trials de novo. Florida Motor Lines v. State Railroad Commission, 101 Fla. 1018, 132 So. 851; Interstate Commerce Commisssion v. Union Pac. R.R. Co., 222 U.S. 541, 32 S.Ct. 108, 56 L.Ed. 308; Tagg Brothers v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L.Ed. 524; People of the State of New York v. McCall, 245 U.S. 345, 38 S.Ct. 122, 62 L.Ed. 337.

This disposes of the first assignment of error to the effect that the trial court erred in giving judgment for plaintiff because the order of the commission was supported by substantial evidence.

We consider next whether the order of the superior court setting aside the order of the commission was supported by substantial evidence. Since the proceeding before us is an appeal, and not a trial de novo, we must assume the decision of the superior court to be correct if there is any reasonable evidence in the record to sustain it. Plaintiff urges that we are foreclosed from considering this question for the reason that the reporter's transcript of the testimony taken at the trial in the superior court has been stricken from the record, and that in such circumstances we will not consider an assignment to the effect that the evidence does not sustain the judgment. In re Scott, 21 Ariz. 332, 188 P. 260; Lesueur v. Backstein, 27 Ariz. 566, 233 P. 1050; Daze v. Ketchum, 18 Ariz. 31, 155 P. 964; Ensign v. Koyk, 31 Ariz. 1, 250 P. 246.

Defendant admitting the general rule, contends that it appears from the record herein that the testimony contained in the reporter's transcript is of no importance, and that the case was really determined solely on a certain exhibit which is a part of the record, notwithstanding that the transcript has been stricken, and we can therefore consider this assignment of error on the record. It appears from the minutes of the trial court that plaintiff offered the oral testimony of Amos A. Betts, which, of course, is found only in the stricken transcript, and then rested. Defendant thereupon offered Exhibit 1 and also rested. Strictly speaking, therefore, we have in the record only defendant's evidence, with plaintiff's entirely...