Corporation Commission v. Southern Pac. Co., 4995

• Decision Date: 31 March 1948
• Docket Number: 4995
• Citation: 191 P.2d 719,67 Ariz. 87
• Parties: CORPORATION COMMISSION et al. v. SOUTHERN PAC. CO. et al
• Court: Arizona Supreme Court

191 P.2d 719

67 Ariz. 87

CORPORATION COMMISSION et al. v. SOUTHERN PAC. CO. et al

No. 4995

Supreme Court of Arizona

March 31, 1948

Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.

Affirmed.

John L Sullivan, Atty Gen., John W. Rood, Chief Asst. Atty. Gen Burr Sutter, Asst. Atty. Gen., and Wallace W. Clark and Jerman & Flynn, all of Phoenix, for appellants.

Evans Hull, Kitchel, Ryley & Jenckes, Norman S. Hull and William Spaid, all of Phoenix, for appellees.

Stanford, Chief Justice. LaPrade and Udall, JJ., concur.

OPINION

Stanford, Chief Justice.

After a hearing before the Arizona Corporation Commission an opinion and order was entered by that body holding that the Wells Truckways, Ltd., a corporation, had authority to operate motor vehicles as a common carrier of freight over the public highways between Yuma and Tucson, Arizona, designated and known as U. S. Highway No. 80 between Yuma and Gila Bend, and State Highway No. 84 between Gila Bend and Tucson, serving all intermediate points. Following such order an action was filed by the appellees herein in the Superior Court of Maricopa County. From a judgment of that court setting aside, vacating and holding unlawful, unreasonable and arbitrary the order of the Arizona Corporation Commission, the case was brought here on appeal.

Both appellants and appellees filed in the Superior Court a motion for summary judgment. The court entered an order granting appellees' motion.

The judgment of the court rendered contained the following:

"(1) That the order of the Arizona Corporation Commission entered in Docket No. 10071-A-6275, Decision No. 15973, granting the application of Wells Truckways, Ltd., a corporation, and authorizing the operating of motor vehicles as a common carrier for the transportation of freight over the public highways between Yuma, Arizona, and Tucson, Arizona, designated and known as U. S. Public Highway No. 80 between Yuma and Gila Bend, Arizona; thence from Gila Bend, Arizona, to Tucson, Arizona, over Arizona State Highway No. 84, serving all intermediate points, is unlawful unreasonable, arbitrary and void;

"(2) That the Certificate of Convenience and Necessity issued to the said Wells Truckways, Ltd., a corporation, by the Arizona Corporation Commission, authorizing the transportation for hire of freight between Yuma and Tucson, Arizona, serving intermediate points, as aforesaid, is unlawful and void;

"(3) That said order (Decision No. 15973) and the Certificate of Convenience and Necessity issued thereon are hereby vacated and set aside;"

The important assignments of error may be briefly summed up as follows:

1. That no right of appeal to the Superior Court from an order of the Corporation Commission granting or denying a certificate of public convenience and necessity is allowed.

2. That appellees did not comply with the provisions of our code in reference to filing a motion for rehearing before the effective date of the order of the Corporation Commission before taking the matter into the Superior Court.

3. That the granting of summary judgment in the Superior Court to appellees was error before there was any evidence before the court that the action of the Corporation Commission was unreasonable.

4. When evidence shows that the territory to be served is new territory and over a different route, the Commission is not required to first offer an existing carrier the opportunity to furnish such new service.

It is contended by appellants that the provisions of Section 69-249, A.C.A.1939, giving a party in interest the right to commence an action against the Corporation Commission for the purpose of setting aside an order of the Commission, has no application to an order made granting a certificate of convenience and necessity to operate as a motor carrier in accordance with Section 66-506, A.C.A.1939.

Article 15, Section 2, Constitution of Arizona, reads as follows: "Public Service Corporations. -- All corporations other than municipal engaged in carrying persons or property for hire; * * * and all corporations other than municipal, operating as common carriers, shall be deemed public service corporations."

Article 15, Section 17, Constitution of Arizona, reads: "Appeals. -- Nothing herein shall be construed as denying to public service corporations the right of appeal to the courts of the state from the rules, regulations, orders, or decrees fixed by the corporation commission, but the rules, regulations, orders, or decrees so fixed shall remain in force pending the decision of the courts." However, the instant case is brought under Section 69-249, supra.

In our case of Corporation Commission v. Consolidated Stage Co., 63 Ariz. 257, 161 P.2d 10, 111, we said:

"A rehearing was requested as authorized by section 69-248, A.C.A.1939, and was denied. Thereafter the appellee brought this action in the superior court, as provided by section 69-249, A.C.A.1939, to have said order of the appellant set aside for the reason that the order or decision of the commission was unlawful and not within its jurisdiction.

* * *

"We have examined sections 1, 2, and 3 of Article 15 of the state Constitution relative to the powers of the commission over public service corporations. We have also examined Chapter 66, Article 5, sections 66-501 to 66-533, A.C.A.1939, relating to the regulation of public highway transportation. The foregoing chapter provides for the licensing and regulation of common motor carriers. Their regulation and supervision is vested in the corporation commission. The commission has power to fix and regulate rates, facilities, time schedules, territory to be traversed; to prescribe uniform systems of accounts; to require reports, tariff schedules; and 'to supervise and regulate such common motor carriers in all matters affecting the relations between such carriers and the public, and between such carriers, and other common motor carriers, to the end that the provisions of this act may be fully carried out.' Section 66-504, A.C.A.1939. * * *

"The commission has set out as one of its assignments of error that the court erred in denying the appellant's motion for judgment on the pleadings upon the ground that the appellee was not a party in interest within the meaning of section 69-249, A.C.A.1939, permitting such a party to commence an action to vacate or set aside an order of the commission. * * *"

The last few lines of the above quotation indicate the previous attitude of the appellant herein in respect to Section 69-249, supra, and also shows that this court has always, as it did in that case, held that the said Section 69-249, supra, was and is applicable to cases like the instant one. Said section is found in the chapter entitled "Public Service Corporations".

We are unable to follow the contention of the appellants wherein it is claimed that appellees did not comply with the provisions of our code by filing a motion for rehearing before the effective date of the order of the Corporation Commission. In that respect we observe that the Wells Truckways, Ltd., applied for a certificate to our Corporation Commission on September 19, 1945. The matter was heard by the Commission on October 4, 1945. On No vember 30, 1945, the Commission made the order granting the application of petitioner. On December 12, 1945, appellees applied to the Commission for rehearing, and on December 28, 1945, said application for rehearing was denied. On January 15, 1946, complaint was filed in the Superior Court of Maricopa County to set aside the order of the Commission. Section 69-249, supra, states: "Any party in interest, * * * may within thirty (30) days after a rehearing is denied or granted, and not afterwards, commence an action in the superior court * * *."

It is the claim of appellants that: "* * * appellees cannot follow the provisions of Section 69-248 and section 69-249, A.C.A.1939, because the rehearing provisions cannot be complied with, in that the order granting a certificate under Chapter 66, Article 5, A.C.A.1939 is effective when issued. It is appellants' contention that in this particular the reason appellees cannot qualify as appellants under Sections 69-248 and 69-249 is they cannot review actions of the Corporation Commission, acting under Chapter 66, Article 5 of the 1939 Code, which is the motor vehicle code; that the limited review procedure set up in Chapter 69, Article 2 of the 1939 Code, which is the portion of the code governing public service corporations, as distinguished from motor carriers, is confined to judicial review of only a few matters arising under Chapter 69, Article 2 itself. It is obvious the statutes are in opposition one to the other."

For over a decade this court has consistently held that what we call the "highway" or "regulation of public highway transportation" code, Code 1939, § 66-501 et seq., and our code relating to "Public Service Corporations", Code 1939, § 69-201 et seq., are in pari materia and have been and should be considered as one subject.

Notwithstanding the appellants' view in this respect treating on the subject of why the action was not filed in the Superior Court within the time prescribed by law, this court holds, in keeping with its decisions heretofore rendered, that the action was timely commenced under Section 69-249, supra.

The third assignment of error, or contention,...