Tarry Moving & Storage Co. v. Railroad Commission, 10993

• Decision Date: 11 July 1962
• Docket Number: No. 10993,10993
• Citation: 45 P.U.R.3d 71,359 S.W.2d 62
• Parties: TARRY MOVING & STORAGE CO., Inc., et al., Appellants, v. RAILROAD COMMISSION of Texas et al., Appellees.
• Court: Texas Court of Appeals

Page 62

359 S.W.2d 62

45 P.U.R.3d 71

TARRY MOVING & STORAGE CO., Inc., et al., Appellants, v. RAILROAD COMMISSION of Texas et al., Appellees.

No. 10993.

Court of Civil Appeals of Texas, Austin.

July 11, 1962.

Rehearing Denied July 25, 1962.

Christopher & Bailey, Fort Worth, for appellants.

Will Wilson, Atty. Gen., Marvin F. Sentell, Asst. Atty. Gen., Lanham & Hatchell, Austin, for appellees.

RICHARDS, Justice.

This appeal involves the validity of three orders of the Railroad Commission of Texas dividing Specialized Motor Carrier Certificate No. 9233 into three separate certificates or authorities for the purpose of enabling James H. Jeter, its owner, to sell the separated authorities to Alex J. Hafmeister, Wayne K. Horton and R. C. Albert, the Railroad Commission, Jeter, Hafmeister, Horton and Albert being appellees herein. Tarry Moving & Storage Company, Jack Albright, Joe L. Baker and A. G. Duncan, a partnership, and B. A. Benthol, appellants, who appeared before the Railroad Commission and protested the issuance of the orders authorizing the division and sale of parts of the authority contained in Certificate No. 9233, filed three separate suits in the 98th Judicial District Court of Travis County as appeals from the orders of the Railroad Commission under the provisions of Sec. 20, Art. 911b, Vernon's Civil Statutes. The suits were consolidated into this action for the purpose of trial. After trial before the Court without a jury, judgment was rendered that appellants 'take nothing', from which judgment they have perfected this appeal.

On October 21, 1957 the Railroad Commission of Texas, pursuant to its orders entered September 19, 1956 and September 26, 1957, issued consolidated Specialized Motor Carrier Certificate of convenience and necessity No. 9233 to James H. Jeter authorizing him to operate specialized motor carrier services within the State of Texas, as follows:

'TO TRANSPORT (OLD CERT. 8848) HOUSEHOLD GOODS AND USED OFFICE FURNITURE AND EQUIPMENT from any point within a 50 mile radius of Olney, Texas, to all points in Texas, and vice versa;

'TO TRANSPORT (OLD CERT. 16472) HOUSEHOLD GOODS, USED OFFICE FURNITURE AND EQUIPMENT from points within a 50 mile radius of Seymour, Texas, to all points in Texas, and vice versa.

'TO TRANSPORT: (OLD CERT. 16473) HOUSEHOLD GOODS AND USED OFFICE FURNITURE & EQUIPMENT from all points within a 25 mile radius of Henrietta, Texas, to all points in Texas, and vice versa.

'TO TRANSPORT: (OLD CERT. 9233) HOUSEHOLD GOODS AND USED OFFICE FURNITURE AND EQUIPMENT from all points within a 25 mile radius of Wichita Falls, Texas, to all Texas points and vice versa; excluding the transportation to or from Harris County, Texas.'

The consolidation order was entered by the Commission for the convenience of the carrier upon the Commission's findings that it would be to the vest public interest to consolidate the certificates. In his application to consolidate the certificates of convenience and necessity, all but one of which had been previously acquired by Jeter by purchase from the original owners, Jeter stated that the proposed consolidation would result in a savings in the matter of keeping records and books as to the operations under the certificates. When the original certificates of convenience and necessity were granted by the Commission to the original owners under the provisions of Sec. 5a(c), Art. 911b, Vernon's Ann.Civ.St., the Commission made determinations that the granting of such certificates was in full compliance with the requirements of Subsec. (d), Sec. 5a, Art. 911b.

The orders of the Commission, the invalidity of which is asserted by appellants, are the order (1) providing for the division from Cert. No. 9233 and issuance to James H. Jeter of that portion of the order which authorized the transportation of household goods, used office furniture and equipment from all points within a 25 mile radius of Wichita Falls, Texas, to all Texas points and vice versa, excluding the transportation to or from Harris County, into a certificate to be numbered 18421 and the order authorizing the sale of Certificate No. 18421 by James H. Jeter to Alex G. Hafmeister.

Under the same procedure the Commission's order (2) approved the division from Certificate No. 9233 of that part of the authority granted under old Certificate No. 16473 to transport household goods, and used office furniture and equipment from all points within a 25 mile radius of Henrietta, Texas, to all points in Texas and vice versa, into a certificate to be numbered 19121 and the order authorizing the sale of Certificate No. 19121 to Wayne K. Horton.

In the same manner the Commission ordered (3) the division from Certificate No. 9233 of the authorization granted under old Certificate No. 16472 to transport household goods, used office furniture and equipment from points within a 50 mile radius of Seymour, Texas to all points in Texas and vice versa, into a certificate to be numbered 19377 and authorized the sale of Certificate No. 19377 to R. C. Albert.

In entering the orders approving the applications to sell and transfer the divided certificates from Jeter to Hafmeister, Horton and Albert, the Commission made the necessary findings required under Sec. 5a(a), Art. 911b. After entering the various division orders, supra, there remained in James H. Jeter the authority under old Certificate No. 8848 to transport household goods, used office furniture and equipment from any point within a 50 mile radius of Olney, Texas to all points in Texas and vice versa.

Appellants base their appeal as to the invalidity of the Commission's orders upon ten points of error, which are as follows: (1) that the applications to divide and create new specialized motor carrier certificates do not meet the jurisdictional requirements of Sec. 5a(c), Art. 911b; (2) that the Commission was without authority or jurisdiction to divide Certificate No. 9233 into two or more parts with no division either geographically or by commodities; (3) that the Commission's order dividing and authorizing the issuance to Jeter of Certificate No. 18421 for the purpose of sale did not comply with the requirements of Sec. 5a(d) and 6(d), Art. 911b, since the order contained no findings of fact; (4) that under Art. 911b in the division and sale of a part of a certificate there must be a finding that such division and sale is not contrary to the public interest and will not impair the service to the public but must be supported by substantial evidence; (5) that assuming either express or implied authority to divide Certificate No. 9233 the Commission's order contains no findings and no possible finding is supported by any evidence; (6) that the Commission's order authorizing the sale by Jeter to Hafmeister contains no findings required by Sec. 5a(a), Art. 911b and does not meet the requirements of Sec. 6(d), Art. 911b, and is void; (7) that the order dividing Certificate No. 9233 and the issuance to Jeter of Certificate No. 18241 creates a new certificate, authorizes a new service and a new competitor without proof of convenience and necessity required by Secs. 5a(d) and 8-12, inc., Art. 911b; (8) that none of the Commission's orders are supported by substantial evidence, (9) that the Commission's orders are arbitrary, unjust and unreasonable to appellants, and (10) that the Trial Court erred in admitting over objection the testimony of the witness Horace Soule as to departmental construction of Art. 911b by the Railroad Commission of Texas because such departmental construction could only be established by duly promulgated rules and regulations.

Appellants first contend that the proceedings for the consolidation and division of specialized motor carrier certificates are to be had under Sec. 5a(c), Art. 911b, and hence the Commission's orders are void unless the proceedings meet the requirements of Sec. 5a(d), Art. 911b.

Since the enactment of Art. 911b, V.C.S., the Commission has construed its authority to grant or refuse application for the consolidation and division of specialized motor carrier certificates to stem from Sec. 4(a), Art. 911b, which authorizes and empowers the Commission to supervise and regulate motor carriers in all matters whether specifically mentioned in the Act or not for the purpose of regulating transportation and relieving existing and future undue burdens on the highways arising out of the use of the highways by motor carriers thereby adjusting and administering its regulations in the interest of the public. Applications to consolidate or divide specialized motor carrier certificates are not covered by any specific section of Art. 911b. Where applications to consolidate or divide certificates do not involve the grant of additional operating rights in competition of those of existing carriers, those provisions of the Act dealing with orders and findings of the...