In re Appeal of Hamilton Pipe Line Co.

• Decision Date: 25 January 1949
• Docket Number: 2411
• Citation: 65 Wyo. 350,202 P.2d 184
• Parties: In the Matter of the Appeal of Hamilton Pipe Line Company and Empire State Oil Company from a Decision of the Public Service Commission of the State of Wyoming. HAMILTON PIPE LINE COMPANY and EMPIRE STATE OIL COMPANY, Appellants, Appellants. v. STANOLIND PIPE LINE COMPANY, Appellee, Respondents
• Court: Wyoming Supreme Court

202 P.2d 184

65 Wyo. 350

In the Matter of the Appeal of Hamilton Pipe Line Company and Empire State Oil Company from a Decision of the Public Service Commission of the State of Wyoming. HAMILTON PIPE LINE COMPANY and EMPIRE STATE OIL COMPANY, Appellants, Appellants. v. STANOLIND PIPE LINE COMPANY, Appellee, Respondents

No. 2411

Supreme Court of Wyoming

January 25, 1949

APPEAL from District Court Laramie County; SAM M. THOMPSON, Judge.

Proceeding in the matter of the appeal of the Hamilton Pipe Line Company and Empire State Oil Company from a decision of the Public Service Commission of the State of Wyoming, wherein the Stanolind Pipe Line Company made application to the Wyoming Public Service Commission for certificate of public convenience and necessity to construct, operate and maintain a pipe line for transportation of oil protested by the Hamilton Pipe Line Company, Empire State Oil Company, Comet Refining Company, and Peters, Writer & Christensen, Inc. From an order of the District Court dismissing the appeal of the Hamilton Pipe Line Company and Empire State Oil Company from a decision granting the certificate, the Hamilton Pipe Line Company and Empire State Oil Company appeal.

Reversed and remanded.

For appellants-appellants the cause was submitted on the brief and oral argument of John C. Pickett of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR APPELLANTS.

Sec 64-313 W.C.S. 1945 provides that at any time after an order has been made by the Commission any interested person "may" apply for a rehearing. Such application for rehearing shall stay the effect of any order or decision of the Commission for a period of thirty (30) days.

The word "may" used in statutes has its ordinary meaning unless the public interest or rights are involved or unless it is necessary that it be construed as mandatory to give meaning to the intention of the legislature. Webster's Dictionary Words and Phrases. Saul v Saul, 104 F.2d 245; Strain v. Southerton, 62 N.E. 633 (Ohio); First National Bank v. Road District, 54 N.E.2d 847 (Ill.); Boddicker v McPartlan, 41 N.E.2d 753; Spokane County v. Glover, 97 P.2d 638.

Assignments of error that the judgment of the district court is contrary to and not sustained by evidence, and that the judgment of the district court is contrary to law are sufficient for review of the case. Radalj v. Union Savings & Loan Assoc., 59 Wyo. 140, 138 P.2d 984.

For appellee-respondent the cause was submitted on the brief and oral arguments of Wilfrid O'Leary and Carleton A. Lathrop both of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT.

Appellant did not exhaust all of its remedies before the lower tribunal previous to asking for relief from the appellate tribunal.

The purpose of an application for a rehearing provided by statute, and it must be presumed to have a useful purpose, is to afford an opportunity to the parties to bring to the attention of the Commission, in an orderly manner any question theretofore determined in the matter, and thereby afford the Commission an opportunity to rectify any mistakes made by it before presenting the same to the Supreme Court. Consumers' Co. v. Public Utilities Comm. 236 P. 732.

The rule that a party must exhaust all of his remedies before the lower court or tribunal before he can ask for relief from an appellate tribunal is well settled.

The petition of appeal should include all parties either as appellants or as appellees. The rule rests upon the principle that it would be manifestly unjust to disturb the rights of some of the parties which have been correctly determined, on the application of one whose rights are separate, distinct and severable therefrom. A party's individual rights may be preserved upon a several or upon a joint assignment of error, but if the error be jointly assigned the relief, if any, is also joint, and if each party joining in the assignment is not entitled to the relief the assignment will be overruled. Greenwalt v. Natrona Imp. Co. (Wyo.) 92 P. 1008.

Appellants' petition on appeal does not assign the errors relied upon as required by statute. The object of assignment of errors is to point out the specific errors claimed to have been committed by the court below, in order to enable the reviewing court and opposing counsel to see on what points appellant or plaintiff in error intends to ask a reversal of the judgment or decree, and to limit discussion to those points. Hall Oil Co. v. Barquin, 28 Wyo. 151, 201 P. 160; 3 A. J. Appeal and Error, Secs. 703-714; Bowman v. Bowman, 53 Wyo. 298, at 303, 82 P.2d 357; York v. James, 60 Wyo. 222, at 233, 148 P.2d 596.

RINER Chief Justice. KIMBALL, J. and BLUME, J. concur.

OPINION

RINER, Chief Justice.

The Stanolind Pipe Line Company designated subsequently usually as the "applicant" on April 29, 1947 made an application to the Wyoming Public Service Commission, herein usually mentioned as the "Commission", seeking a certificate of public convenience and necessity to construct, operate, and maintain a pipe line for the transportation of oil from what is commonly known as the Hamilton Dome Oil Field to Hot Springs, Wyoming, together with a gathering system in said Field to connect with its main pipe line about twelve and a half miles northwest of that field.

The Commission ordered a hearing upon this application on May 20, 1947. Prior to and at this hearing protests against the granting of such a certificate to the applicant were presented to the Commission by Hamilton Pipe Line Company, Empire State Oil Company, Comet Refining Company, and Peters, Writer and Christensen, Inc. The protestant first named had a completed pipe line from the oil field aforesaid including a gathering system in the field; the protestant secondly named appears to own or have an interest in the field acreage; the protestant thirdly named is a purchaser of crude oil produced in the field; and the protestant lastly named represented the holders of bonds issued by the Hamilton Pipe Line Company.

Evidence was presented by all these parties to the Commission during the course of the hearing mentioned above. After taking the matter under advisement, on July 30, 1947 findings were made by the Commission. It also made its order thereon directing the issuance of the certificate sought by the applicant on the same day the order was made. The certificate was accordingly issued as of that date, to-wit: July 30, 1947.

Thereafter and on October 17, 1947, the Hamilton Pipe Line Company and the Empire State Oil Company, two of the protestants above named, filed their "petition of appeal" with the Clerk of the District Court of Laramie County Wyoming. The grounds of this appeal were stated to be:

"A. That said decision is contrary to the evidence adduced at the hearing on said Application; and is not supported by substantial evidence.

"B. That said decision is contrary to law."

A certified copy of the record made before the Commission, including a transcript of the evidence presented to that body, was thereafter filed in the District Court, apparently on February 25, 1948. Coincident with the filing of the petition of appeal in the District Court a summons was issued by the Clerk of that Court requiring the applicant aforesaid to answer the "petition of appeal" within 30 days after service of the summons upon the applicant. October 17, 1947 service of copies of this summons and the "petition of appeal" was duly accepted by one of the attorneys for the applicant.

November 15, 1947 the applicant by its counsel filed in said Court its motion to dismiss the appeal thus undertaken, the grounds of the motion being stated to be:

"1. Appellants failed to exhaust their rights and remedies before the Public Service Commission of Wyoming, before appealing to this court.

"2. Appellants failed in their Petition of Appeal to assign all errors relied upon.

"3. Appellants have not taken their intended appeal in accordance with the law governing such matter."

On December 18, 1947 argument on this motion was heard by the District Court and on the following day the Court entered its order sustaining the motion and dismissing the appeal undertaken as above recited, the order reading as follows:

"The above matter coming on to be heard this 18th day of December, 1947, upon the motion of the appellee, Stanolind Pipe Line Company, to dismiss the appeal herein filed by the appellants, Hamilton Pipe Line Company and Empire State Oil Company, and the Court having examined the files herein and having heard the arguments of counsels for the parties herein, and being now fully advised in the premises, it is hereby ordered, judged and decreed that said motion to dismiss be granted and the petition of appeal and the appeal be and are hereby dismissed.

"The appellants after the motion had been argued by both sides, and after the court had indicated its intention to dismiss the appeal, requested the court for permission to amend their petition of appeal, which request was denied by the court.

To all of which appellants excepted and except.

Dated this 19th day of December, 1947."

Notice that the appellants, Hamilton Pipe Line Company and Empire State Oil Company appealed from this order of dismissal to this court was duly served on and acknowledged by one of the attorneys for the applicant and filed December 24, 1947. Specifications of error were in due course filed with the Clerk of the District Court of Laramie County March 5, 1948 and the entire record came here April 17, 1948. The cause has been briefed and argued and is now for disposition.

The statutory provisions of this state which must be kept in mind in passing upon the contentions of the parties are given below. Only so much of each section is quoted as is needful to...