North East Texas M. Lines v. Texas & Pacific M. T. Co.

• Decision Date: 20 November 1941
• Docket Number: No. 11285.,11285.
• Citation: 159 S.W.2d 926
• Parties: NORTH EAST TEXAS MOTOR LINES, Inc., v. TEXAS & PACIFIC MOTOR TRANSPORT CO. et al.
• Court: Texas Court of Appeals

159 S.W.2d 926

NORTH EAST TEXAS MOTOR LINES, Inc., v. TEXAS & PACIFIC MOTOR TRANSPORT CO. et al.

No. 11285.

Court of Civil Appeals of Texas. Galveston.

November 20, 1941.

Rehearing Denied December 11, 1941.

Appeal from District Court, Travis County; A. R. Stout, Judge.

Proceeding by the Texas and Pacific Motor Transport Company before the Railroad Commission for a certificate of convenience and necessity to operate a common carrier motor service between Sherman and Texarkana, which was opposed by North East Texas Motor Lines, Inc. From a judgment denying cancellation of certificate granted, the North East Texas Motor Lines, Inc., appeals.

Affirmed.

Carl L. Phinney, of Dallas, and Chas. F. Herring, Looney & Clark, and Everett L. Looney, all of Austin, for appellant.

R. S. Shaphard, S. W. Lancaster, W. O. Reed, and W. A. Keeling, all of Dallas, and Black, Graves & Stayton and John W. Stayton, all of Austin, for appellees.

MONTEITH, Chief Justice.

This is an appeal by appellant, North East Texas Motor Lines, Inc., under the Motor Carrier Act, Article 911a and 911b, Vernon's Annotated Civil Statutes, from an order of the Railroad Commission granting appellee, the Texas and Pacific Motor Transport Company, a certificate of convenience and necessity to operate a common carrier motor carrier service over State Highways Nos. 5 and 5-A, between Sherman and Texarkana, Texas, and serving all intermediate points.

On November 29, 1935, appellee filed with the Railroad Commission its application for a certificate of convenience and necessity to operate over said highways. A hearing was held thereon before a duly appointed examiner of the Railroad Commission in Bonham, Texas, on March 22 and 23, 1938. On April 26, 1938, the Railroad Commission entered its order denying said application. Motion was filed for a rehearing and on a rehearing, at which all parties were present, said application was granted by order entered September 29, 1939. Thereafter appellant appealed from said order of September 29, 1939, to the 53rd District Court of Travis County. In this action it sought to enjoin appellee and the Railroad Commission from taking any action under the certificate issued to appellee by the Commission on September 29, 1939, for the alleged reason that said order was invalid because the Railroad Commission at its hearing on August 15, 1939, on which the order entered on September 28, 1939, was based, was invalid for the reason that the Commission had refused to permit appellant to present evidence. On the trial of said cause, judgment was rendered in favor of appellant, setting aside said order, cancelling the certificate of convenience and necessity issued thereunder, and permanently enjoining both appellee and the Railroad Commission from taking any action under or recognizing said certificate. Said judgment expressly provided, however: "* * * that this judgment shall be and is without prejudice to the rights of (appellee) to again appeal to the Railroad Commission for further hearing on its application for a certificate of convenience and necessity * * * and without prejudice to the Railroad Commission of Texas taking such action * * * in holding further proceedings and hearings and entering such orders granting or denying the application * * * as said Commission may consider just and proper under the law, * * * provided that said Railroad Commission of Texas shall not enter any order granting or denying a certificate upon the said application until and unless upon due notice to all interested parties and conducts a further hearing or hearings at which all interested parties are permitted to appear and offer evidence."

This judgment was not appealed from and became final.

Thereafter, appellee applied to the Railroad Commission and was granted a further hearing on said application and hearings were held thereon at Dallas, Texas, on January 26, 1940, and at Paris, Texas, on February 1, 1940. Appellant appeared at both hearings and protested the granting of the application. On August 28, 1940, an order was entered by the Railroad Commission granting said application. Appellant appealed from this order to the 53rd District Court of Travis County. On the trial of said cause judgment was rendered in favor of appellee, denying appellant a cancellation of said certificate and denying it a permanent injunction.

Appellant unsuccessfully sought in the trial court and here seeks to have the order granting said certificate declared invalid upon the following main grounds: (1) That there was no sufficient showing in the record to support the finding of the Commission that there existed a public necessity and convenience for additional services and facilities such as were offered by appellee; that the existing service over said route was inadequate, or that the highways over which appellee sought to travel were adequate for the service sought and that they were not unduly burdened with the existing traffic; (2) that the order of the Railroad Commission, entered on August 28, 1940, granting appellee's application for said permit, was void for the reason that it was an attempt on the part of the Railroad Commission to change, annul and amend its previous order of September 28, 1939, after it had become final, and that it was an attempt to review, set aside or alter a final judgment of the 53rd District Court; and (3) that the order of the Railroad Commission granting said application was invalid, for the alleged reason that it did not result from a regularly scheduled meeting of the Railroad Commission or a called meeting of the Commission preceded by notice, but that it resulted from an informal conference between two of the Commissioners, of which the third Commissioner had no notice, and at which he was not present.

Appellant's contention that there is not sufficient showing in the record to support the findings of the Commission cannot be sustained. It has been uniformly held that in an action involving Article 911b, Vernon's Annotated Civil Statutes, the Railroad Commission must take into consideration the need of the public for additional transportation facilities, and whether the highways can stand the additional traffic, and that the matter of granting a certificate of convenience and necessity to common motor carriers over the public highways has been vested by the legislature exclusively in the sound discretion of the Railroad Commission. The weight to be given to evidence adduced at a hearing of an application has been uniformly held to be a matter for the Commission and not for the courts to determine and it is held that, on statutory appeal from an order of the Commission granting such a certificate, the courts are only authorized to review the order of the Railroad Commission to determine if it is within the law and to require that it shall be based on substantial evidence and not upon an arbitrary or capricious exercise of the Commission's authority, and that the court is not authorized to substitute itself for the Commission to try the...