Harris v. State Corp.. Comm'n (dalby Motor Freight Lines Inc.

• Decision Date: 19 September 1942
• Docket Number: No. 4661.,4661.
• Parties: HARRISv.STATE CORPORATION COMMISSION et al. (DALBY MOTOR FREIGHT LINES, Inc., Intervenor).
• Court: New Mexico Supreme Court

46 N.M. 352

129 P.2d 323

HARRIS

v.STATE CORPORATION COMMISSION et al. (DALBY MOTOR FREIGHT LINES, Inc., Intervenor).

No. 4661.

Supreme Court of New Mexico.

Sept. 19, 1942.

Appeal from District Court, Santa Fe County; David Chavez, Jr., Judge.

Suit for an injunction by Joe A. Harris, doing business as Harris Truck Line, against the State Corporation Commission of the State of New Mexico, Don R. Casados and others, as members of and constituting the State Corporation Commission of the State of New Mexico, wherein Dalby Motor Freight Lines, Inc., intervened. From an adverse judgment, defendants and intervener appeal.

Reversed.

Regulation of the transportation of persons and property by motor vehicle for hire upon the public highways to protect the safety and welfare of the traveling and shipping public is a legislative administrative function and not a function of the judiciary.

L. C. White, of Santa Fe, and Levens & Benson, of Lubbock, Tex., for appellant Dalby Motor Freight Lines.

Geo. H. Hunker, Jr., Asst. Atty. Gen., for appellant Corporation Commission.M. W. Hamilton, of Santa Fe, for appellee.

BICKLEY, Justice.

Intervenor, a common motor carrier, operating an interstate freight line from Amarillo, Texas, to Denver, Colorado, made application to the State Corporation Commission, referred to as the Commission, for a certificate of public convenience and necessity to transport freight along its route on U. S. Highway 87, between Raton and Clayton, to serve intermediate points located on that highway, with the exception of Meloche, Grande and Royce.

Pursuant to said application, and after due notice was given, a hearing was had thereon before the Commission.

Intervenor (applicant) introduced evidence by the testimony of numerous witnesses evidencing the need for the service to be supplied by applicant and for the granting of the certificate.

The appellee, Joe A. Harris, also operating a common motor carrier interstate freight line between Denver and Clayton under a certificate of convenience and necessity, was present at said hearing, protesting the granting of a certificate to the applicant, Intervenor, and offered the evidence of Mr. Harris, but offered no testimony by the shipping public.

The Commission from the evidence found that the applicant proposed to provide daily service at points along the line, the protestants only serving three and four times a week, and reported that “the applicant used ten witnesses to substantiate their plea to the Commission for this service, and in each instance each witness testified that this service was needed in their business, and, on the other hand, the protestant used no witnesses other than the testimony of Mr. Harris himself. The witnesses testified that they had been deprived of business through lack of service, and with the issuance of this certificate to the applicant that it would not only be a convenience and necessity to them but to the entire community along this route.

“We find that public convenience and necessity require the operation by applicant as a common carrier to transport commodities in general between Raton and Clayton and intermediate points except Meloche, Grande and Royce, via U. S. Highway 87.”

These findings are in substantial observance of the provisions of the controlling statute, Ch. 154, L.1933, Sec. 8 of which says:

“If the commission finds from the evidence that the public convenience and necessity require the proposed service or any part thereof it may issue the certificate as prayed for, or issue it for the partial exercise only of the privilege sought and may attach to the exercise of the right granted by such certificate such terms and conditions as in its judgment the public convenience and necessity may require; otherwise such certificate shall be denied. Before granting a certificate to a common motor carrier, the commission shall take into consideration existing transportation facilities in the territory for which a certificate is sought, and in case it finds from the evidence that the service furnished by existing transportation facilities is reasonably adequate, the commission shall not grant such certificate.”

[1] So we hold that the findings support the order of issuance of the certificate.

Thereafter the protestant Harris filed a complaint in the District Court, wherein, among other averments, it is alleged that the action of the Commission in granting said certificate was “Unreasonable, discriminatory, unjust and unlawful” in *** “permitting another truck line to operate over said route” for the reason that it would “destroy the business of the plaintiff” and would “So reduce the income therefrom as to make it impossible for the plaintiff *** to profitably continue his transportation business operations over said route”. And further that the order granting the certificate was, “unreasonable, discriminatory, unjust and unlawful in that the injury resulting to the plaintiff” would result in injury and detriment to the public by reason of the impossibility of the plaintiff to profitably continue operations; and prayed an injunction against the Commission to restrain it from permitting the operation under the certificate issued to the Applicant-Intervenor.

Issue was joined by answers on behalf of the Intervenor and the Commission.

The portion of the act cited, which authorizes the foregoing procedure is as follows:

“Sec. 51. (Action to Set Aside Orders of Commission.) (a) Any motor carrier and any other person in interest being dissatisfied with any order or determination of the Commission, not removable to the Supreme Court of the State of New Mexico under the provisions of Section 7, Article XI of the Constitution of the State of New Mexico, may commence an action in the District Court for Santa Fe County against the Commission as defendant, to vacate and set aside such order or determination, on the ground that it is unlawful, or unreasonable. In any such proceeding the court may grant relief by injunction, mandamus or other extraordinary remedy. In any such action the complaint shall be served with the summons.

“(b) The answer of the Commission to the complaint shall be served and filed within twenty days after service of the complaint, whereupon said action shall be at issue without further pleading and stand ready for trial upon ten days' notice.

“(c) Any person not a party to the action, but having an interest in the subject thereof, may be made a party.

“(d) All such actions shall have precedence over any civil cause of a different nature, and the District Court shall always be deemed open for the trial thereof, and the same shall be tried and determined as other civil actions without a jury.”

At the trial, the plaintiff Harris, instead of introducing the record of the hearing before the Commission, introduced over objection, the testimony of seven witnesses.

The intervenor offered in evidence a certified copy of the order of the Commission and the proceedings before the Commission pursuant to which the order and Certificate were issued.

The court, upon the conclusion of the evidence, made its findings of fact which were contrary to those made by the Commission, upon the essentials set forth in Section 8 of the act quoted supra, namely, in brief, that the old service was sufficient and that there was no need for the proposed new and additional service.

The Court concluded as a matter of law that the action of the Commission in granting the certificate to intervenor-appellant was unlawful and unreasonable. From the judgment based upon these findings and conclusion the Commission and intervenor appeal.

The first question is as to the scope of the judicial review provided for by § 51, Ch. 154, L.1933.

Our constitutions, both federal and state, divide the powers of government into three classes-the legislative, the executive, and the judicial. Our Constitution in Article 3 expressly provides that “no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted.” We do not find any exceptions that would pertain to the instant case. We early took note of these constitutional principles, shortly after the adoption of the constitution, in a thorough exposition of the purposes, intents and bounds of the provisions of sections 7 and 8 of Article XI, which delineate the powers of the Corporation Commission over carriers-Duties of the Supreme Court-and dealing with hearings before the Corporation Commission in an able and exhaustive opinion by Mr. Chief Justice Roberts, in Seward v. Denver & R. G. R. Co., 17 N.M. 557, 131 P. 980, 46 L.R.A.N.S., 242.

Later, in Seaberg v. Raton Public Service Co., 36 N.M. 59, 8 P.2d 100, 101, we frequently drew upon the Seward case and said:

“The proceeding of removal [of a cause from the commission to the Supreme Court] is not for the review of judicial action by the commission. It is to test the reasonableness and lawfulness of its orders. The function of the commission is legislative; that of the court, judicial. The commission is not given power to enforce any order; it being merely a rate-making or rule-making body, doing what, if there were no commission, the Legislature alone could do. The court, on the other hand, can make no rate or rule, since it lacks the legislative power. ***

“If this court is to review the commission's rule making or rate making, except as to the lawfulness or reasonableness of the rules or rates imposed, we ourselves assume legislative powers which, as held in the Seward case, it was not the intention to confer. ***

“Granted the force of the provision invoked as pointing to a different scheme of regulation, granted that, if invoked in the Seward case, it might have turned the scales, it can have no such weight now. Even if we were inclined,...