Thompson v. Railroad Commission
| Decision Date | 09 May 1951 |
| Docket Number | No. A-2828,A-2828 |
| Citation | 150 Tex. 307,240 S.W.2d 759 |
| Parties | THOMPSON et al. v. RAILROAD COMMISSION et al. |
| Court | Texas Supreme Court |
Kelley, Mosheim & Ryan and Baker, Botts, Andrews & Parish, all of Houston, J. T. Suggs and Stroud & Dyer, all of Dallas, Wigley, McLeod, Mills & Shirley, Galveston, Allen, Gambill & Gambill and Seth Barwise, all of Fort Worth, Kenneth McCalla, Walter Caven and Austin L. Hatchell, all of Austin, for petitioners.
Price Daniel, Atty. Gen., Durward Goolsby, Asst. Atty. Gen., and Albert G. Walker, Austin, Callaway & Reed, R. E Kidwell, O. D. Montgomery and W. D. White, all of Dallas, for respondents.
This is a suit by Guy A. Thompson, Trustee for certain railroads, and by other railroads to set aside orders of the Railroad Commission amending the specialized motor carrier permits of Ray Smith Transport Company and Robertson Transport Company, Inc., so as to authorize them to transport certain chemicals and other commodities in liquid form in trucks between all points in Texas. The trial court upheld the orders of the Commission, and its judgment was affirmed by the Court of Civil Appeals. 232 S.W.2d 139.
It is the position of petitioners that this case is ruled by our decision in Thompson v. Hovey Petroleum Company, 236 S.W.2d 491. It appears that the Court of Civil Appeals regarded the two cases as companion cases, but, as presented here, they may not be so regarded. While the orders in this case are substantially identical with those in the Hovey case, the assignment upon which we rested our opinion in that case is not contained in the application for writ of error in this case. In the Hovey case motor carriers as well as railroads were parties in the trial court and on appeal, and it was an assignment by the motor carriers which we sustained in our opinion. In this case only the railroads filed suit in the trial court and perfected appeals. Since we sustained an assignment by the motor carriers in the Hovey case, we did not consider the assignments of the railroads. Those assignments are identical with those before us in this case, and it now becomes our duty to consider them.
Assignment No. 2 is as follows: 'The error of the Court of Civil Appeals in holding that the orders of the Railroad Commission dated May 5, 1949 complied with Article 911b, Revised Civil Statutes of Texas, 1925, as amended, by containing findings of fact as required by Section 5a(d) of Article 911b, V. A. C. S.'
The Article referred to in the assignment empowers the Commission to issue specialized motor carrier certificates, and reads in part as follows: 'The order of the Commission granting said application * * * shall be void unless the Commission shall set forth in its order full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers, and the public need for the proposed service.'
That language is clear and positive. It declares that an order which does not set forth 'full and complete findings of fact' shall be 'void.' There is no mistaking what the language means. The subject with which it deals is not private property rights, but is one of public concern. The right of the Commission to grant a specialized motor carrier certificate is created by this statute for the public good, and it is elementary that that right can be exercised in no other way than by a compliance with its provisions. The statute both creates and limits the Commission's power. The evident legislative intent was not only to require the Commission to determine the facts upon which the validity of a given order depends, but to go further and require that there be set forth in the order 'full and complete findings of fact.' The question is procedural, but the statute leaves no room for doubt that compliance with its requirements by the Commission is necessary to the validity of its orders. Findings in support of conclusions cannot be presumed under this statute.
As stated above, the orders under review are substantially identical with the order in the Hovey case, supra. The opinion in that case quotes the relevant provisions of that order, and they will not be repeated here. For the purpose of this opinion a sufficient summary thereof is as follows:
Paragraphs 1 and 2 are findings upon formal matters.
Paragraph 3 begins 'The Commission further finds from the evidence that applicant presented witnesses who testified as to the need for the proposed service, * * *.'
This paragraph is one sentence composed of numerous clauses. Each clause is a statement that witnesses testified to certain facts. There is no finding of fact contained in the paragraph except the finding that witnesses testified to certain facts.
Paragraph 4 is a finding with respect to financial responsibility of the applicant, the adequacy of the equipment proposed to be used, and a further finding that the highways are of such type, construction, and maintenance as to permit the use sought to be made thereof, without unreasonable interference with the use by the general public for highway purposes.
Paragraph 5 recites: '* * *; that said rail lines offered evidence which was in part as follows:' There is then a recital of the evidence offered by the rail lines which in a measure refutes the evidence of the motor carriers set forth in paragraph 3, with no findings of fact whatever except that the application was protested and that the rail lines offered evidence.
Following the summation of the evidence offered by the rail lines is this paragraph: 'The commission further finds from the evidence and its own records, after carefully considering the existing transportation facilities and demand for and the need of the additional service, that the service and facilities of the existing carriers serving the territory are inadequate; and that public convenience will be promoted by granting said application and permitting the operation of motor vehicles on the highways designated in said application as a common carrier for hire.'
Obviously, that is not a finding of fact, but is only a finding of an ultimate conclusion, partly in the words of the statute.
We are referred to many authorities from other jurisdictions construing orders of public service commissions under statutes similar to ours. Without exception, so far as our investigation goes, they all hold that a general conclusion like the one copied next above is not a compliance with the statutory requirement that the Commission file findings of fact. The following, among others, announce that conclusion. Gulf Transport Co. v. Illinois Commerce Commission, 402...
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