Transcontinental Bus System v. State Corporation Commission

• Decision Date: 20 February 1952
• Docket Number: No. 5367,5367
• Citation: 241 P.2d 829,56 N.M. 158,1952 NMSC 21
• Parties: TRANSCONTINENTAL BUS SYSTEM, Inc. v. STATE CORP. COMMISSION et al.
• Court: New Mexico Supreme Court

Page 829

241 P.2d 829

56 N.M. 158

TRANSCONTINENTAL BUS SYSTEM, Inc. v.STATE CORP. COMMISSION et al.

No. 5367.

Supreme Court of New Mexico.

Feb. 20, 1952.

Rehearing Denied March 26, 1952.

H. A. Kiker, Santa Fe, Charles C. Spann, Albequerque, for appellant and cross-appellee.

Moses & Vaught, Albuquerque, Joseph L. Martinez, Atty. Gen., for appellees and cross-appellants.

COORS, Justice.

This is an appeal from a judgment of the District Court of Santa Fe County amending an order of the State Corporation Commission which granted a certificate of public convenience and necessity to Joseph B. Land and C. A. Bartlett, doing business as Geronimo Lines, to operate passenger and express service between Albuquerque and Las Cruces on Highway 85 and between Albuquerque and Belen over Highways 85 and 47 and all intermediate points except between Albuquerque and Isleta.

On October 21, 1946 said Land and Bartlett, doing business as Geronimo Lines, filed an application with the State Corporation Commission for a certificate of public convenience and necessity to operate a motor passenger, baggage, express and mail service between Albuquerque, New Mexico, and Anthony, New Mexico, over U. S. Highway 85 from Albuquerque to Las Cruces and over U. S. Highway 80 from Las Cruces to Anthony and additional service between Albuquerque and Belen, New Mexico, over Highway 85 and State Highway 47.

At that time plaintiff's (appellant's) predecessor in interest, The Santa Fe Trails Transportation Company, was operating a passenger, baggage and express service by motorbus between Albuquerque and Anthony under authority of the State Corporation Commission.

Months prior to the application of Geronimo Lines, Edward Percy Sanderson, doing business as Country Club Bus Lines, had filed an application to engage in the same business over part of the same route, that is, between Las Cruces and Hot Springs, and a hearing on Sanderson's application was held by the Commission and concluded on August 19, 1946, although no decision was made or announced by the Commission until December 21, 1946, at which time Sanderson was granted a certificate of public convenience and necessity to operate in local service a passenger and baggage service between Las Cruces and Hot Springs over U. S. Highway 85, with the right to serve intermediate points including off-route points within a radius of one mile of said highway.

The State Corporation Commission began the hearing on the Land and Bartlett application on November 25, 1946, at Hot Springs and finally concluded the hearing at Santa Fe on December 19, 1946.At the conclusion of such hearing the commission requested and required counsel for interested parties to file written briefs upon the evidence taken and the law.Appellant's precedessor in interest, The Santa Fe Trails Transportation Company, and said Sanderson had notice of such hearing and were present and took part therein as protestants.The transcript of the hearing on the Land and Bartlett application comprised 2162 pages and was not transcribed and filed with the Commission for more than four months after the hearing closed on December 19, 1946.The said protestants at the said hearing on the Land and Bartlett application did, both orally and by written motions before any testimony was taken, pray for a continuance of the hearing until a decision on the prior application of Sanderson, which had been heard by the Commission in August, had been made by the Commission and the extent of service, if any, of Sanderson could be observed and considered and an opportunity granted to the existing carrier or carriers to show the adequacy of service being rendered after action of the Commission on the Sanderson application.The said motions were denied by the Commission and the hearing on the Land and Bartlett application continued and concluded two days before the Commission acted on the Sanderson application, granting him the certificate he had applied for many months before.The record before us clearly shows the Commission in the hearing on the Land and Bartlett application had no evidence whatever before it which it could properly or legally consider in determining what were the actual existing transportation facilities in the territory furnished and operated by Sanderson, because Sanderson was not even granted a permit until two days after all evidence in the Land and Bartlett hearing was concluded and never thereafter opened, so that when, on June 30, 1947, the Commission issued its order and granted a certificate to Land and Bartlett the Commission had no evidence before it on the actual existing transportation facilities, no evidence on how Sanderson was operating, what kind of service he was or had been rendering the public since the granting of his permit more than six months before.Yet the order of the Commission entered June 30, 1947, granting the application of Land and Bartlett and directing the issuance of the certificate, shows on its face by its very terms that the Commission took into consideration the transportation facilities being furnished by Sanderson.There being no evidence in the record touching any actual existing service rendered by Sanderson, whatever information the Commission had and considered on this matter was necessarily outside the record, without any notice to appellant and without any opportunity for appellant to know, prepare or meet such issues or matters considered by the Commission in reaching its decision.

The order entered by the State Corporation Commission, dated June 30, 1947, upon the Land and Bartlett application, eliminating the title and the signatures, reads as follows:

'Order

'This matter having been fully heard, and the Commission having considered briefs of all interested parties and official transcripts and exhibits filed, and

'It appearing that, since the close of the hearing in this case, the Commission has granted a Certificate to Edward Percy Sanderson, dba Country Club Bus Line, to operate a passenger service between Las Cruces, New Mexico, and Hot Springs, New Mexico, in local service; the fact does not remove the inadequacy of existing services between Albuquerque, New Mexico, and Las Cruces, New Mexico, as said carrier would still be subject to an interchange of traffic at Hot Springs.The Applicant proposes a through local service, the record in the case supports the conclusion and the public is entitled to an adequate through local service between Albuquerque, New Mexico, and Las Cruces, New Mexico; and

'It further appearing, from all the facts established in the record, that the service provided by the present transportation facilities in the territory are not reasonably adequate or satisfactory, and that an existing public need has been shown by the Applicant for the establishment of an additional through local service between Albuquerque, New Mexico, and Las Cruces, New Mexico, and between Belen, New Mexico, and Albuquerque, New Mexico, over the routes as set out in the record herein; and

'It further appearing that the service proposed by the Applicant will not deplete or impair the revenues of existing carriers in the territory, the Commission finds that public convenience and necessity require the service proposed; therefore,

'It is hereby ordered that a Certificate of Public Convenience and Necessity be granted the Applicant as follows: Passenger and express service between Albuquerque, New Mexico, and Las Cruces, New Mexico, over U. S. Highway 85 and between Albuquerque, New Mexico, and Belen, New Mexico, over U. S. Highway 85andState HighwayNo. 47, as set out in the application.The applicant shall serve all intermediate points except between Albuquerque, New Mexico, and Isleta, New Mexico, and intermediate points.

'Done in the Offices of the State Corporation Commission, Santa Fe, New Mexico, this 30th day of June, 1947.'

Thereafter this action was filed by predecessor of appellant, The Santa Fe Trails Transportation Company, and Sanderson, doing business as Country Club Bus Lines, against the Corporation Commission and its members for the purpose of vacating and setting aside the said order and enjoining the defendants from enforcing the same.The material allegation in the complaint is that the said order of the State Corporation Commission is unreasonable or unlawful.This action, it is admitted by all parties, was filed by virtue of the power and authority conferred upon the District Court of Santa Fe County by the provisions of Sec. 68-1363,N.M.S.A. 1941.The material parts of this section of the statute, as far as this appeal is concerned, read as follows:

'(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 11 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. * * *'

Later, Sanderson, having sold his rights under the certificate issued to him, was permitted by order of court to withdraw from the case.A bill of particulars was filed by plaintiff stating in detail the various grounds and reasons for its contention that the order of the Commission of June 30, 1947 was unlawful or unreasonable and such of these as we think are controlling in the case will be herein later mentioned or discussed.The District Court of Santa Fe County had before it the records and transcript of testimony and all other documents and instruments introduced in the hearing before the State Corporation Commission.After plaintiff and defendants had filed their respective requested findings of...