State v. CARMODY

• Decision Date: 03 August 1949
• Docket Number: No. 5199,5199
• Citation: 208 P.2d 1073,53 N.M. 367
• Parties: STATE ex rel. TRANSCONTINENTAL BUS SERVICE, Inc. v. CARMODY.
• Court: New Mexico Supreme Court

53 N.M. 367

208 P.2d 1073

STATE ex rel. TRANSCONTINENTAL BUS SERVICE, Inc.

v.CARMODY.

No. 5199.

Supreme Court of New Mexico.

Aug. 3, 1949.

[208 P.2d 1074, 53 N.M. 368]

H. A. Kiker, Santa Fe, Chas. C. Spann, Santa Fe, for relator.

John C. Watson, Santa Fe, for respondent.

Moses & Vaught, Albuquerque, Seth & Montgomery, Santa Fe, amici curiae.

SADLER, Justice.

This is a proceeding invoking our original jurisdiction in prohibition, instituted in the name of the State on the relation of Transcontinental Bus System, Inc., against Honorable David W. Carmody as Judge of the First Judicial District of the State of New Mexico, sitting within and for the County of Santa Fe, to restrain him from remanding to State Corporation Commission a cause pending before him in which the Santa Fe Trails Transportation Company, a corporation, and another are plaintiffs and State Corporation Commission and the three commissioners constituting its personnel, are defendants, numbered 21,034 on the civil docket of said court. The action pending before the respondent judge was instituted by the plaintiffs to set asideas unlawful, or unreasonable, an order of said commission made and entered on June 30, 1947, granting a certificate of public convenience and necessity to named individuals doing business as 'Geronimo Lines' to operate a passenger, baggage express and mail service on certain routes, or portions thereof, over which the relator already held a like certificate to operate. The action was instituted pursuant to the provisions of 1941 Comp. § 68-1363.

Following a hearing before the respondent in which the files of the Corporation Commission were submitted in evidence, including a transcript of testimony taken before the Commission aggregating more than 2,000 pages, briefs were filed and the cause was taken under advisement by him. In due course he advised counsel for both sides of his purpose to remand the cause to Corporation Commission for further hearing on the question of the adequacy of existing facilities over the routes in question. Thereupon, the relator applied for and sought prohibition against respondent, basing the right to such relief upon two grounds, to-wit; (a) that the respondent was about to exceed his jurisdiction in granting a remand of said cause to the Corporation Commission; and (b) that even if the threatened action should be held within the jurisdiction of the trial court as jurisdiction is construed in prohibition cases, we should prohibit, in the exercise of our superintending control over district courts, to prevent error reasonably calculated to work great and irreparable harm to relator. These grounds will be taken up and considered in their order.

Turning then to relator's right to prohibition, it appears the trial courts has jurisdiction both of the parties and of the subject matter. Hence, prohibition may not properly be invoked to stay the commission of threatened error, if error it is, a question yet to be resolved. Counsel for relator argue with must earnestness that the order of remand to State Corporation Commission, if made as respondent proposes to do, will represent the exercise of an excess of jurisdiction, citing Hammond v. District Court, 30 N.M. 130, 228 P. 758, 39 A.L.R. 1490; State v. Medler, 19 N.M. 252, 142 P. 376; and State ex rel. Lynch v. District Court, 41 N.M. 658, 73 P.2d 333, 113 A.L.R. 746.

It may be admitted that there are in the opinions in some of these cases, especially the Medler and Hammond cases, certain statements lending support to counsel's claim that if great harm and expense will result through failure to prohibit, as where the remedy by appeal is wholly inadequate, the discretion of this court will be moved to prohibit, even though the trial court is moving within its jurisdiction. In other words, statements implying that prohibition is a discretionary writ even when applied for on jurisdictional grounds. Itshould be pointed out, however, that what is said on the discretionary character ofthe writ in the Medler case, relates to its use in the exercise of our superintending control over inferior courts.

If it ever was the law in this state that discretion is a material factor when considering the right to the writ on jurisdictional grounds, it was repudiated and abandoned as early as the case of Gilmore v. District Court, 35 N.M. 157, 291 P. 295, and the rule there announced has been followed over the years since then. See State ex rel. St. Louis, Rocky Mountain & Pacific Co. v. District Court, 38 N.M. 451, 34 P.2d 1098; State ex rel. Heron v. District Court, 46 N.M. 290, 128 P.2d 451; Mares v. Kool, 51 N.M. 36, 177 P.2d 532, and State ex rel. Prince v. Coors, 52 N.M. 189, 194 P.2d 678.

Counsel argue as though cases in which the writ is issued to restrain the trial court from exceeding its jurisdiction, as in State ex rel. Lynch v. District Court, supra, represent a modification of the unbending character of the rule that prohibition will not lie if the trial court has jurisdiction of both the parties and the subject matter. But such is not the case. In no sense do these cases represent a modification or liberalization of this cardinal rule, since to the extent the court proposes to exceed its jurisdiction, there is a want of jurisdiction, both over the parties and the subject matter. To such extent any judgment rendered by it would be a complete nullity and subject to collateral attack. For instance, absent prohibition in State ex rel. Lynch v. District Court, supra, any order of the district court authorizing the receiver to levy and collect the special tax involved would have been absolutely void. Cf. Walls. v. Erupcion Mining Co., 36 N.M. 15, 6 P.2d 1021, and State ex rel. Davie v. Bolton, N.M., 206 P.2d 258.

We think the present case is not one calling for our writ for want of jurisdiction in respondent to take the threatened action. Had he issued the order of remand, even erroneously, relator could not safely have ignored same with the idea of later making a successful collateral attack upon it. This leaves for decision whether we should issue the writ in the exercise of our superintending control over the court presided over by respondent. We turn now to a consideration of this question. In resolving it, first and necessarily we must decide whether in an action instituted by a party in interest under 1941 Comp. §§ 68-1363, 68-1364, 68-1366 and 68-1367, L.1933, c. 154, §§ 51 to 54, incl., to set aside an order of the Corporation Commission as being unlawful or unreasonable, the district court may properly remand the cause to the Commission for the taking of additional testimony on a material issue, in the meantime suspending decision on the validity of the order beingreviewed. The pertinent sections of the statute mentioned read:

'Sec. 51. (a) Any motor carrier and any other person in interest being dissatisfied with any order or determination of the Commission, not removable to the Supreme Court of the State of New Mexico under the provisions of Section 7, Article XI of the Constitution of the State of New Mexico, may commence an action in the District Court for Santa Fe County against the Commission as defendant, to vacate and set aside such order or determination, on the ground that it is unlawful, or unreasonable. In any such proceeding the court may grant relief by injunction, mandamus or other extraordinary remedy. In any such action the complaint shall be served with the summons.

'(b) The answer of the Commission to the complaint shall be served and filed within twenty days after service of the complaint, whereupon said action shall be at issue without further pleading and stand ready for trial upon ten days' notice.

'(c) Any person not a party to the action, but having an interest in the subject thereof, may be made a party.

'(d) All such actions shall have precedence over any civil cause of a different nature, and the District Court shall always be deemed open for the trial thereof, and the same shall be tried and determined as other civil actions without a jury.

'Sec. 52. Every action to vacate or amend any determination or order of the Commission or to enjoin the enforcement thereof or to prevent such order or determination from becoming effective shall be commenced, and every appeal to the courts or right of recourse to the courts shall betaken or exercised within ninety days after the entry or rendition of such order or determination, the right to commence any such action, or to take or exercise any such appeal or right of recourse to the courts, shall terminate absolutely at the end of such ninety days.

'Sec. 53. Any party to said action, within sixty days after service of a copy of the said order or judgment of the District Court, may appeal to the Supreme Court, and the cause shall be placed on the calendar of the then pending term and shall be assigned and brought to a hearing in the same manner as other causes on the calendar.

Sec. 54. In such actions and proceedings in court all processes shall be served and the practice and rules of evidence shall be the same as in civil actions, except as otherwise provided.'

It may be taken as well established that in a proceeding for statutory review, the court must act within the bounds of the statute conferring its jurisdiction to review and where the measure of its power is to determine whether the questioned orderis unlawful or unreasonable, ordinarily it can only approve or vacate the order. 42 Am.Jur. 686; 51 C.J. 78, 81; State v. Public Service Commission, 324 Mo. 270, 23 S.W.2d 115; Baum v. Industrial Commission, 288 Ill. 516, 123 N.E. 625, 6 A.L.R. 1242; Vander Werf v. Board of Railroad Com'rs, 58 S.D. 586, 237 N.W. 909; Chicago, M. & St. P. Ry. Co. v. Public Utilities Commission, 41 Idaho 181, 238 P. 970; Oregon Short Line R. Co. v. State Public Utilities Commission, 47 Idaho 482, 276 P. 970. Cf. Havemeyer v. Public Service Commission of Puerto Rico, 296 U.S. 506, 56 S.Ct. 360, 80 L.Ed. 357.

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