WHITFIELD v. CITY BUS LINES

• Decision Date: 09 December 1947
• Docket Number: No. 5034,5034
• Parties: WHITFIELD et al. v. CITY BUS LINES, Inc., et al.
• Court: New Mexico Supreme Court

51 N.M. 434

187 P.2d 947

WHITFIELD et al.

v.CITY BUS LINES, Inc., et al.

No. 5034.

Supreme Court of New Mexico.

Dec. 9, 1947.

[187 P.2d 948, 51 N.M. 435]

George A. Shipley, of Alamogordo, and Donovan Hoover, of Santa Fe, for appellants.

J. B. Newell and Edwin Mechem, both of Las Cruces, Bert Newland, of Deming, and H. A. Kiker, of Santa Fe, for appellees.

C. C. McCulloh, Atty. Gen., and Robert V. Wollard, Asst. Atty. Gen., amici curiae.

PER CURIAM.

Upon consideration of appellees' motion for rehearing, we have withdrawn the original opinion and substituted the following as the opinion of the court.

COMPTON, Justice.

Appellants and others instituted this proceeding to restrain appellees from unlawfully engaging in the business of transporting passengers for hire over routes covered by appellants. From an adverse judgmentappellants W. E. Whitfield, Jr., Hugh C. Whitfield and Mary E. Whitfield, individually and as joint executors of the estate of W. E. Whitfield, deceased, bring this appeal.

Appellants asserted that they were operating local passenger service by means of motor busses between Las Cruces, State College, Mesilla Park and Mesilla, in DonaAna County over U. S. Highway 80 and State Road 28, under authority of a certificate of public convenience and necessity issued to them by the State Corporation Commission of New Mexico. They further allege as a fact that appellees, without a certificate of convenience and necessity, wrongfully and unlawfully, and in violation of the rights of appellants, operated busses and motor vehicles, in the transportation of passengers for hire, over highways and routes and between points covered by the schedules and transportation business of appellants, and 'that the defendants in the operation of said vehicles, as aforesaid, are engaged in the business of 'Common Motor Carrier' as defined by the New Mexico Motor Carrier Act.'

By a general denial, issue was joined. At the conclusion of the trial the court made its findings of fact and conclusions of law, except those deemed unnecessary to a decision, as follows:

'1. The plaintiffs W. E. Whitfield, Jr., Hugh C. Whitfield and Mary E. Whitfield, individually and as joint executors of the estate of W. E. Whitfield, deceased, at all times material were and now are engaged in the transportation business under the style of 'W. E. Whitfield and Sons,' and in the operation of said business are the holders of a certificate of Public Convenience and Necessity, duly issued by the State Corporation Commission of the State of New Mexico, authorizing the transportation of passengers for hire between Las Cruces in Dona Ana County, New Mexico, and Mesilla (commonly known as Old Mesilla), Mesilla Park, and State College, all in said county, over U. S. Highway No. 80, State Road No. 28 and State College Road.'

'2. At all of the times material hereto the said W. E. Whitfield and Sons have been and now are engaged in the business of transporting passengers for hire to and fro between Las Cruces, Mesilla (commonly known as Old Mesilla), Mesilla Park and State College, all in Dona Ana County, New Mexico, by means of motor buses.'

'4. The defendants, C. G. Newland, Jesse B. Lydick and Robert Y. McMillin, at all of the times material hereto, since about the 3rd of September, 1946 and until restrained from so doing, by preliminary injunction herein, have been engaged in the transportation of passengers for hire, under the style of 'City Bus Lines,' by means of motor vehicles or motor buses, to and fro between Las Cruces, Mesilla, (commonlyknown as Old Mesilla), Mesilla Park and State College, all in Dona Ana County, New Mexico, over U. S. Highway 80, State Road No. 28 and State College Road. The said roads and highway are public highways of the State of New Mexico.'

'5. The defendants Newland, Lydick and McMillin have not been granted Certificate of Public Convenience and Necessity by the Corporation Commission of New Mexico and are not holders nor in possession of any Certificate of Public Convenience and Necessity authorizing them or permitting them to transport passengers for hire over the public highways of the State of New Mexico between Las Cruces, Mesilla Park and State College.'

'10. That at the time of the institution of this suit and prior thereto the defendants, Jesse B. Lydick, C. G. Newland and Robert Y. McMillin, were engaged in operating passenger buses for hire over a route lying partly within the City of Las Cruces and partly within the area adjacent thereto, including Mesilla, Mesilla Park and State College.

'11. That said route covered 91,787 feet, of which distance 50,479 feet were within the corporate limits of the City of Las Cruces, and 41,308 feet were outside the City limits.

'12. That said route is a fixed route, the operation of the same being confined to certain designated streets in the City and certain designated roads and highways outside the City.' and then concluded as law:

'2. The plaintiffs, Whitfield and Sons, are lawfully engaged in the business of operating a common motor carrier to and fro between the points of Las Cruces, Mesilla, (commonly known as Old Mesilla), Mesilla Park and State College, in Dona Ana County, New Mexico, over U. S. Highway 80, State Road No. 28 and State College Road, under authority of a certificateof Public Convenience and Necessity issued by the State Corporation Commission of New Mexico.'

'4. That the operation of the defendants come within Exemption (f) Section 68-1325, N.M. Statutes, 1941 Annotated.'

'5. That plaintiffs are not entitled to the relief sought in their Complaint, and that the preliminary injunction heretofore issued in this cause should be dissolved and this cause should be dismissed.'

Appellants urged twelve assignments of error, which they argue under the following points:

'1. By failing to plead affirmatively the facts relied upon as relieving them from the necessity of complying with the provisions of the 'New Mexico Motor Carriers' Act,' Chapter 154 of the Laws of 1933, as amended, the defendants thereby waived this defense.'

'2. The accumulated distances traveled by the defendants' buses over several fixed routes within the corporate limits of Las Cruces cannot be used as a basis for exempting the defendants from the provisions of the New Mexico Motor Carriers' Act.'

The evidence shows that appellees, under a franchise from the City of Las Cruces, New Mexico, commenced their daily operation at 7:00 A.M., at a point in the northwest part of the City of Las Cruces, proceeding therefrom in a southeasterly direction to the intersection of Griggs and Main Street, near the center of the city, thence south and southwesterly to State College; then reversing the route in a northwesterly direction to Main Street; thence north on Main to the intersection of Las Cruces Avenue and Main Street; thence east on Las Cruces Avenue to Church Street; thence south on Church Street, several blocks, then making a circular loop to the left; thence northerly to the northeast part of the city; thence south to Las Cruces Avenue; thence west to the intersection of Main Street; thence south to the city limits, and southeasterly to Mesilla; thence south and westerly to Mesilla Park; thence...