Petroleum Transp., Inc. v. Public Service Commission
| Decision Date | 18 February 1971 |
| Docket Number | No. 19172,19172 |
| Citation | 179 S.E.2d 326,255 S.C. 419 |
| Court | South Carolina Supreme Court |
| Parties | PETROLEUM TRANSPORTATION, INC., Respondent, v. The PUBLIC SERVICE COMMISSION, Appellant. |
Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Joseph C. Coleman and William F. Austin, Columbia, for appellant.
Whaley, McCutchen, Blanton & Richardson, Columbia, for respondent.
The lower court issued an order directing that appellant, The Public Service Commission of South Carolina, issue to respondent, Petroleum Transportation, Inc., a certificate of public convenience and necessity, for which respondent's application had been previously denied by appellant. No appeal was taken from the above order but, after the time for appeal had elapsed, appellant moved unsuccessfully to set aside the order because of alleged lack of jurisdiction of the lower court to issue it. The questions presented in this appeal involve the jurisdiction of the lower court to issue the order in question. The facts are not in dispute.
Respondent applied to appellant (hereafter referred to as the commission) for the issuance of a class E certificate of public convenience and necessity to render motor freight service in the transportation of liquified petroleum gas over irregular routes in this State. After a hearing, at which considerable testimony was taken, the application was denied by the commission in an order dated November 22, 1967 and a petition for a rehearing was subsequently denied on December 19, 1967.
Thereafter, respondent instituted an action in the Court of Common Pleas for Richland County on January 16, 1968 by the service of a summons and complaint, in which the Court was petitioned to overrule and set aside the foregoing order and to direct the commission to issue the certificate applied for, upon the grounds that the action of the commission in denying the application was unreasonable, unlawful, and discriminatory, and deprived respondent of equal protection under the State and Federal Constitutions.
After the service of the summons and complaint, the commission filed an answer which was, in substance, a general denial.
The issues arising under the complaint and answer were heard by the lower court and, on May 28, 1969, an order was issued in which the court concluded 'that the weight of the evidence clearly supports the position of the plaintiff (respondent) * * *, that the plaintiff has established the convenience and necessity required, and that it would be unjust to deny relief to the plaintiff.' Upon such findings, the action of the commission in denying the certificate was reversed and it was ordered to forthwith issue to respondent the certificate sought.
The record upon which the lower court heard the matter consisted of the transcript of the proceedings and testimony previously taken at the original hearing before the commission and certain exhibits which were introduced without objection.
No appeal was taken from the order of the lower court of May 28, 1969, and the commission issued an order on July 14, 1969 directing that the certificate be issued, and notice thereof was forwarded to respondent's counsel on July 17, 1969. Although this order of the commission was not rescinded or modified by formal notice, the certificate was never issued.
Since it had not been issued as directed, respondent moved on August 20, 1969 for an order requiring the commission to issue the certificate. Thereafter, the commission, on September 18, 1969, noticed a motion for an order setting aside the previous order of the court, issued on May 28, 1969, upon the ground:
That this court was without jurisdiction to issue such order in the premises, there being neither statutory, common law, nor inherent authority for the court to review the action of the commission in the circumstances except in a certiorari proceeding;
And that the order in question manifestly was not the result of an action in the nature of certiorari, but was, instead, in the nature of an appeal or other judicial review de novo.
Both of the above motions, that of respondent to require the issuance of the certificate and that of the commission to set aside the order of May 28, 1969, were heard together by the lower court and an order was issued on June 1, 1970 granting the motion of respondent and denying that of the commission, from which the commission has prosecuted this appeal.
The sole exception on appeal is as follows:
'That the lower court erred in refusing to set aside its order of May 28, 1969, the error being that the lower court was without jurisdiction to order the South Carolina Public Service Commission to issue a certificate of public convenience and necessity to a motor carrier in the premises in the absence of an allegation and showing by such carrier that the commission's action in refusing to issue such certificate was arbitrary, capricious, and not based on competent evidence properly before the commission.'
The position of the commission in this appeal is, in effect, that the lower court had no jurisdiction of the subject matter and was therefore without authority to issue the order of May 28, 1968. While there is serious question as to whether the above exception raises that question, we nevertheless consider it, since lack of jurisdiction of the subject matter cannot be waived even by consent and may be raised in this court without an exception. Hunter v. Boyd, 203 S.C. 518, 28 S.E.2d 412; Bramlett v. Young, 229 S.C. 519, 93 S.E.2d 873.
We interpret the attack upon the jurisdiction of the lower court to be two-fold: (1) That the only authority of the court to review orders of the Public Service Commission pertaining to the issuance of certificates of public convenience and necessity is by certiorari, that the present action was not such a proceeding, and therefore the court was without jurisdiction to review the order in question; and (2) that the lower court had no jurisdiction to direct the issuance of the certificate to respondent, or exceeded its jurisdiction in doing so, in the absence of a showing that the action of the commission was unlawful, arbitrary, or capricious, or that it was not based on competent evidence.
The Public Service Commission has authority, as defined by statute, over motor carriers operating in this State. This includes the power to issue certificates of public convenience and necessity. Section 58--1401 et seq., 1962 Code of Laws.
We are here concerned with the power of the Court to review an order of the commission issued pursuant to the authority granted under the above cited statutes.
With reference to the right of Appeal from orders issued by the commission, we held in City of...
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