Roberts v. Knoxville Transit Lines

• Decision Date: 19 November 1952
• Citation: 36 Tenn.App. 595,259 S.W.2d 883
• Parties: ROBERTS v. KNOXVILLE TRANSIT LINES.
• Court: Tennessee Court of Appeals

Page 883

259 S.W.2d 883

36 Tenn.App. 595

ROBERTS v. KNOXVILLE TRANSIT LINES.

Court of Appeals of Tennessee, Eastern Section.

Nov. 19, 1952 Certiorari Denied by Supreme Court June 5, 1953.

John Gilbertson, W. W. Kennerly, H. G. Fowler and John Roundtree, Knoxville, for plaintiff in error.

Anderson & Snepp, Knoxville, for defendant in error.

McAMIS, Judge.

This proceeding originated before the Knoxville Public Utilities Commission upon the application of Swan Seymour for a certificate of convenience and necessity to operate a bus under contract with Sears, Roebuck & Company from downtown Knoxville to Sears' Store, a distance of about one and one-half miles. A hearing before the Commission's Co-ordinator resulted in a recommendation that a certificate be granted. This recommendation was followed by the Commission and Knoxville Transit Lines thereupon applied to the Circuit Court of Knox County for writs of certiorari and supersedeas. Upon certiorari, the Commission sent up the entire record including a transcript of the evidence considered by the Co-ordinator and by the Commission.

Swan Seymour, Sears Roebuck & Company, and a majority of the members of the Commission moved to dismiss the petition for certiorari and supersedeas on the grounds: (1) The petition shows on its face that the Court was being asked to substitute its judgment for that of the Commission; (2) The petition and record show that there was ample, material evidence to support the findings and conclusions of the Commission; (3) The petition and record show that the Commission did not act arbitrarily, illegally or in excess of its jurisdiction.

The motion was submitted to the Court on argument of counsel February 20, 1950, and no further action was taken until March 10, 1952, when the Court filed an opinion holding the motion not to have been well taken. On March 31, 1952, respondents Swan Seymour et al. filed a written application for an extension of time within which to file an answer and submit additional proof to refute the charges of the petition and sustain the action of the Commission. This was denied and the present appeal resulted. In disposing of the appeal the parties will be referred to by name or as petitioner and respondents as they appeared in the Circuit Court.

Petitioner Knoxville Transit Lines has moved to strike the transcript of the evidence before the Commission because it was not authenticated as a bill of exceptions and to dismiss the appeal because respondent Seymour has pending before the Commission a second application for a certificate of convenience and necessity to operate his bus over the same route as a common carrier, designed to meet the criticism of the petitioner that the Commission exceeded its authority in granting a common carrier certificate when only a certificate as a contract carrier was sought in the original application.

We think the motion to strike the bill of exceptions is ruled by Hoover Motor Express Company v. Railroad & Public Utilities Commission, 193 Tenn. 284, 246 S.W.2d 15, 16. In that case a motion to strike the bill of exceptions on similar grounds was made and overruled. The proceeding originated before the Railroad and Public Utilities Commission and was carried to the Circuit Court on certiorari. Under the mandate of the Circuit Judge the Commission certified its entire record including a transcript of the evidence to the Circuit Court and it was there filed by the Clerk of that Court. No further evidence was heard by the Circuit Judge and, to review his action, the case was appealed to the Court of Appeals solely upon the transcript from the Commission. As in this case no bill of exceptions, as such, was filed and on that ground the Court of Appeals affirmed the judgment of the Circuit Court. The Supreme Court, speaking through Mr. Justice Gailor, concurred with the Court of Appeals in holding a bill of exceptions necessary but said that the same result could have been accomplished by 'an order of the Trial Judge directing that the original transcript before the Railroad and Public Utilities Commission, should be sent up to the Court of Appeals as part of the record, but showing further affirmatively, that such transcript contained all the evidence heard in the cause in the Circuit Court * * *.'

Such an order was entered and the indicated procedure followed in the present case and we think, both upon the authority of the Hoover case, and as a matter of sound practice, the motion is without merit. No evidence except that heard by the Commission and the Circuit Judge appears in the transcript. The Circuit Judge has ordered that all documents sent up by the Commission to the Circuit Court be transmitted to this Court in their original form. These documents were marked filed by the Clerk when received from the Commission, prior to the trial, and the Clerk has now certified that the documents ordered sent up by the Trial Judge and attached to his certificate 'were all the papers contained in the record forwarded to the Circuit Court by Knoxville Public Utilities Commission on order of the writ of certiorari in the foregoing cause', and the minutes of the Circuit Court show that no other evidence was heard.

Code Section 9014 makes the evidence heard by the Commission proof to be considered by the Trial Judge and, therefore, a part of the record. The writ of certiorari and the Clerk's act in filing it make the technical record of the Commission a part of the technical record in the Circuit Court. We are unable to see how the exact record and evidence considered by the Trial Court would be made more certain by having it copied and approved as a bill of exceptions.

The practice is in accord with the spirit, if not the letter, of Section 8967 of the Official Supplement to the Code extending to law cases the provisions of the original Code Section 8967 making depositions and exhibits a part of the record in Chancery cases on appeal, without being included in the bill of exceptions. If necessary, we think the proof in the present case might without doing violence either to the statute or to established procedure be treated as depositions in the sense of the statute.

We cannot agree that the questions presented by this appeal have become moot because another petition is pending before the Commission designed to eliminate certain grounds of attack on the certificate of convenience and necessity presently under consideration. We can only speculate upon the action that will be taken by the Commission. It may or may not grant another certificate and we think the parties in interest are entitled to have reviewed the action of the Circuit Court holding the original certificate invalid.

It seems proper to respondent at the outset to the contention of Knoxville Transit Lines that the material evidence rule previously followed in reviewing the action of administrative bodies is not to be applied in the present case. As we have seen, the case was submitted to the Trial Judge February 20, 1950, and held under advisement until March, 1952. On March 15, 1951, the Legislature enacted Chapter 261 of the Public Acts of 1951 amending Code Section 9014 to require the Chancellor to weigh the evidence in reviewing on certiorari the action of a board or commission.

Pretermitting the question of whether the Act was intended to apply to decisions involving motor carriers, Code Section 5501.16, to apply it in the present case would give it retroactive effect. We recognize that statutes which are purely procedural, subject to certain limitations, may be applied to pending cases. The Supreme Court has said, however, that the 1951 Act is not to be so applied. Hoover Motor Exp. Co. v. Railroad & Public Utilities Commission, supra. We think this ruling is supported by sound reason. The parties submitted their rights to the Court under the material evidence rule. Under that rule the action of the Commission might be sustained though it might not be under the new rule. Under the old rule a party might be willing to submit his case on the evidence before the Commission but, under the new rule, would feel compelled to introduce further evidence as he has a right to do under Code Section 9014. The rules should not be changed in a manner to affect substantive rights after the parties have submitted their rights to the court. In addition, we note that Knoxville Transit Lines has not assigned error on this question. Applying the material evidence rule, we pass to a consideration of the principal question: Did the Court err in over turning the findings and conclusions of the Commission?

The record shows that, prior to September, 1949, Sears Roebuck & Company chartered a bus from Knoxville Transit Lines to operate as a free bus for customers between downtown Knoxville and its store. Later, Sears leased a bus from Seymour and operated it over the same route. Still later, an agreement was reached between Seymour and Sears that Seymour would operate the bus for Sears at an agreed sum payable monthly. Seymour, on September 13, 1949, applied to the Public Co-ordinator of Knoxville for a certificate of convenience and necessity as a contract hauler. By the application, Seymour sought to continue carrying Sears' customers in the same manner as before except that the bus would be operated by Seymour as a contract hauler.

The application was heard by the Co-ordinator on September 19, 1949, on the same evidence now appearing in the transcript, in the presence of counsel for Knoxville Transit Lines. As shown, the Co-ordinator passed favorably on the application. His recommendation was adopted by the Commission, after a hearing at which both Seymour and Knoxville Transit Lines were represented on February 1, 1950, and on that date a certificate issue to Seymour granting him the right to operate a bus for the free transportation of customers of Sears, the expenses of the operation to be borne by Sears in an amount to be...