Public Service Commission v. Eighth Judicial Dist. Court in and for Clark County

• Decision Date: 19 March 1942
• Docket Number: 3354.
• Parties: PUBLIC SERVICE COMMISSION et al. v. EIGHTH JUDICIAL DIST. COURT IN AND FOR CLARK COUNTY et al.
• Court: Nevada Supreme Court

123 P.2d 237

61 Nev. 245

PUBLIC SERVICE COMMISSION et al. v. EIGHTH JUDICIAL DIST. COURT IN AND FOR CLARK COUNTY et al.

No. 3354.

Supreme Court of Nevada

March 19, 1942

Rehearing Denied May 12, 1942.

Original proceeding in prohibition by the Public Service Commission of the State of Nevada and C. B. Sexton and others, as members of that Commission, against the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark and the presiding judge thereof, to prevent respondent court from entertaining injunction suit against petitioners.

Alternative writ made permanent.

Gray Mashburn, Atty. Gen., and W. T. Mathews and Alan Bible Deputy Attys. Gen., for petitioners.

Harold M. Morse and Madison B. Graves, both of Las Vegas, for respondents.

TABER Justice.

On September 29, 1941 the Public Service Commission made the following order: "It Appearing That there has been filed with the Public Service Commission of Nevada By R. C. Barton and Shirley Brown, doing business as Ely-Las Vegas Bus Lines a complaint that Dave Wolzinger, doing business as Pony Express Stages, is operating motor vehicles in the transportation of passengers between points on U.S. Highways 50 and 93, wholly in the State of Nevada, without a certificate of public convenience and necessity and in violation of Section 6137, Nevada Compiled Laws, 1929, and Section 7 of Chapter 165, Statutes 1933, as amended. It Is Ordered by the Commission upon its own motion that Dave Wolzinger shall appear before the Commission at the Hearing Room of the Nevada Hotel at Ely, Nevada, at 9:00 A. M. October 29, 1941, and show cause, if any he may have, why the Commission should not order him to cease and desist in acting as a common carrier of passengers in intrastate commerce within Nevada in pursuance of Section 6137, Nevada Compiled Laws, 1929, and Section 7 of Chapter 165, Statutes 1933, as amended, and why, pursuant to Section 15 of Chapter 165, Statutes 1933, action should not be begun with a view in enforcing the penalties prescribed in said section for conducting common carrier operations without first having secured a certificate of public convenience and necessity therefor. It Is Further Ordered That Dave Wolzinger shall bring with him records of all ticket sales made by any of his agents or drivers from July 1, 1940 to October 15, 1941." Said order was made pursuant to Section 6(b) of the Motor Vehicle Carriers Act. Chap. 152, Stats. of Nevada, 1937, p. 339.

On October 25, 1941, in the Eighth Judicial District Court, Clark County, Wolzinger commenced an action against the Public Service Commission praying that it be enjoined from holding any hearing on or under said order to show cause, or any similar order, and from taking any further steps or proceedings thereunder or referred to therein, or any other similar order. The complaint alleges that plaintiff is a citizen of the Unied States, a resident of the State of California, and that since July, 1940 he has been engaged in business as a common carrier of passengers and their baggage in interstate commerce between Salt Lake City, Utah and Los Angeles, California, via Ely, Pioche and Las Vegas, Nevada, and other Nevada points, all under and by virtue of the authority granted him by the Interstate Commerce Commission of the United States. It is further alleged: that the Commission is without authority to enter or enforce its said order, but threatens to and will, unless restrained by this court, proceed with the hearing referred to therein; that the Commission has subpoenaed certain of plaintiff's employees and agents at Las Vegas, Ely and elsewhere and requires their attendance at said hearing; that since commencing operations as a common carrier in interstate commerce as aforesaid, plaintiff has built up a business of a value in excess of $10,000; that "plaintiff's business has been, is and will be disrupted by the entry and carrying out of said Order and by the holding of the hearing thereon and plaintiff, his business and property rights, will suffer great and irreparable damage, for which he has no plain, speedy or adequate remedy at law in this, that he, his agents, employees and attorneys will be required to be and appear before said Commission and said defendants as Commissioners, and to prepare records for the use of said Commission, all of which does and will continue to disrupt, interrupt and interfere with his service as a common carrier in interstate commerce and will cause him to be subjected to a multiplicity of baseless suits and prosecutions and will cause his reputation to suffer, all of which will ruin and destroy the business he has built up." A copy of the complaint is attached as an exhibit to the petition herein.

In support of his application for a restraining order in said action, plaintiff filed an affidavit setting forth that on September 3, 1941, the Commission made an order similar to the said order of September 29, 1941, and practically identical therewith, except that no such provision as the last sentence of the order of September 29 was incorporated in that of September 3. The affidavit stated further that the hearing which was to have been held under the order of September 3 was set for September 16, at which time his employees, who had been subpoenaed, appeared at Ely after traveling hundreds of miles at plaintiff's expense, he having in the meantime been compelled to make various changes in his staff of employees, and to add employees. Affiant said further that because of said order of September 3 and said subpoenas, he was forced to and did expend large sums of money, his business was disrupted for a period of several days and that by reason of the order of September 29 many of his employees had been and would again be subpoenaed, thus subjecting him to further expense, and to further interruption and molestation in the conduct and operation of his business.

Upon the filing of said affidavit and an undertaking for preliminary injunction, the district court, on October 25, 1941, issued a restraining order by the terms of which the Commission was restrained from holding any hearing under its order of September 29, or any hearing under any similar order; and from taking any other or further steps or proceedings referred to in the order of September 29. In said restraining order the court ordered the Commission to show cause on November 21, 1941, why it should not be enjoined as aforesaid pending the hearing on said order of October 25 and the final determination of said district court action.

On said 21st day of November, 1941 the petition in this proceeding was filed and an alternative writ of prohibition issued, to which on December 17, 1941, respondents demurred upon the ground that the petition does not state facts warranting or authorizing the issuance of a writ of prohibition, and upon the further ground that the petition shows on its face that at the time it was filed the district court had jurisdiction of the parties in said action and of the subject matter thereof, and still has such jurisdiction, subject only to the alternative writ herein. On said pleadings the matter was submitted for decision.

Section 7 of the Motor Vehicle Carriers Act, as amended, Stats. of 1935, Chap. 126, pp. 263, 264, provides in part: "It shall be unlawful for any common motor carrier of property and/or of passengers to operate as a carrier of intrastate commerce within this state without first having obtained from the public service commission a certificate of convenience and necessity." This is a valid requirement. Eichholz v. Public Service Commission...