Gibbons v. Arizona Corp. Com'n, 5659
| Decision Date | 23 March 1953 |
| Docket Number | No. 5659,5659 |
| Citation | 75 Ariz. 214,254 P.2d 1024 |
| Parties | , 3 P.U.R.3d 493 GIBBONS v. ARIZONA CORP. COMMISSION et al. |
| Court | Arizona Supreme Court |
Yale McFate, Phoenix, for appellant.
Fred O. Wilson, Atty. Gen., Alexander B. Baker, Asst. Atty. Gen., and Clifford R. McFall, Tucson, of counsel, for appellees.
In June, 1948, the Arizona Corporation Commission, hereinafter designated commission, issued W. R. Webster a certificate of convenience and necessity to engage in the 'Dump Truck' business within the State of Arizona, which certificate Webster held until October 19, 1950, when the commission, pursuant to a hearing held on Webster's application to assign and transfer such certificate, approved the application and transferred the certificate to the partnership consisting of Henry Schrober and R. B. Garland.
At the hearing on the application for transfer of the above-mentioned certificate before the said commission, Webster testified that the last operation he conducted under the certificate was in the latter part of 1948; that since that time he had resided in California where he was engaged in the trucking business; that he had an address in Arizona since moving to California and had left a 1942 Ford dump truck at that address but that he had on one in Arizona since the latter part of 1948 to care for his business. Webster further testified that he never intended to abandon his certificate, that he maintained a bond with the Highway Department during 1949, and had filed his reports.
Both Schroder and Garland testified before the commission that they intended to maintain their headquarters at Tucson if the application for transfer of the certificate was approved.
G. L. Gibbons, who operates under a certificate of convenience and necessity at Tucson and performs the same character of public service as permitted under the certificate sought to be transferred, hereinafter designated appellant, appeared before the commission at the above-mentioned hearing and objected to the transfer of the certificate on the grounds that Webster had abandoned his rights under the certificate and also because Schroder and Garland intended to establish headquarters in Tucson where appellant conducted a trucking business under a certificate of convenience and necessity issued by the commission.
Subsequent to the order by the commission approving the transfer, the appellant made application for a rehearing with the commission, which was denied. Appellant, thereafter, filed a complaint against the commission in the Superior Court of Maricopa County requesting that court to declare the order of the commission approving the transfer of the certificate to be illegal and void.
The lower court, after hearing evidence offered by both parties to the action, dismissed appellant's complaint and gave judgment to the commission. Appellant appeals from this judgment.
Appellant alleges that the lower court erred in granting judgment for the commission because (1) there was no reasonable evidence to support such a judgment, (2) Webster had abandoned his operations under the certificate thus leaving no rights to be transferred, and (3) the transferees had established headquarters in Tucson thereby competing illegally with other certified carriers in violation of the certificate.
We will first consider the matter of abandonment by Webster of his operating rights under the certificate.
Section 66-512, A.C.A. 1939, pertaining to abandonment by a common motor carrier, which Webster was designated under his certificate, reads as follows:
'No common motor carrier authorized to operate under the provisions of this act shall abandon or discontinue any service established under such provisions without an order of the commission, unless his authority to operate has expired or is revoked or suspended. * * *'
A certificate may be revoked for good cause by the commission only after the grantee has been given 5 days' notice and an opportunity to be heard. Section 66-511, A.C.A. 1939.
No cases decided by this court construing Section 66-512, supra, have been cited by counsel for either party and we are unable to find any such case in our reports.
There is nothing in the wording of the statute under consideration to warrant our finding that a lapse of operation by a grantee of a certificate of convenience and necessity automatically constitutes an abandonment of his operating authority. It appears that a certificate remains in full force and effect until formally revoked or suspended as provided in Section 66-511, supra.
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