Yazoo & M. v. R. Co. v. Mississippi Railroad Commission

• Citation: 152 So. 649,169 Miss. 131
• Decision Date: 12 February 1934
• Docket Number: 30837
• Parties: YAZOO & M. v. R. CO. v. MISSISSIPPI RAILROAD COMMISSION
• Court: United States State Supreme Court of Mississippi

152 So. 649

169 Miss. 131

YAZOO & M. v. R. CO. v. MISSISSIPPI RAILROAD COMMISSION

No. 30837

Supreme Court of Mississippi

February 12, 1934

Division A

PUBLIC SERVICE COMMISSIONS. Statute permitting circuit court on certiorari to review only questions of law appearing on face of record and proceedings held not to authorize examination of transcript of evidence on review of Railroad Commission's decision granting certificate of convenience and necessity (Code 1930, sections 72, 73, 7125).

Word "proceedings" within Code 1930, section 72 authorizing circuit court in reviewing case on certiorari to examine questions of law arising or appearing on the face of the record and proceedings, includes only such proceedings as must appear of record, and does not include the evidence on which the inferior tribunal acted.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Certiorari by the Yazoo & Mississippi Valley Railroad Company to review an order of the Mississippi Railroad Commission granting a certificate of convenience and necessity to the Motor Transportation Company, Inc. From a judgment of the circuit court quashing certiorari and affirming the order of the commission, petitioner appeals. Affirmed.

Affirmed.

May, Sanders, McLaurin & Byrd, of Jackson, and Chas. N. Burch, H. D. Minor and C. H. McKay, all of Memphis, Tennessee, for appellant.

The application for the issuance of a certificate of convenience and necessity was filed under the provisions of sections 7115 et seq. of the Mississippi Code of 1930, these statutes being the ones which regulate the granting of certificates of convenience and necessity to common carrier motor vehicles. The appeal requested was prayed for under the provisions of section 7125 of the Code of 1930.

It is the contention of the appellant that in granting the certificate of convenience and necessity the Railroad Commission did not follow the provisions of the statute, section 7122, Code of 1930.

Chicago Railways Co. et al. v. Commerce Commission ex rel. Chicago Motor Coach Co., 336 Ill. 51, 167 N.E. 840, 67 A. L. R. 938; West Suburban Transp. Co. v. Chicago & W. T. R. Co., 309 Ill. 87, 140 N.E. 56; Choate v. Commerce Commission, 309 Ill. 248, 141 N.E. 12; C. R. I. & P Ry. Co. v. State, 123 Okla. 190, 252 P. 849; Abbott v. Public Utilities Commission (R. I.), 136 A. 490; Fornarotto v. Public Utilities Board (N. J.), 143 A. 450; Red Star Transp. Co. v. Red Dot Coach Lines et al. (Ky.), 295 S.W. 420, 421; Eager v. Public Utilities Commission, 113 Ohio State 604, 149 N.E. 865; Norfolk Southern Railroad Co. v. Commonwealth, 141 Va. 179, 126 S.E. 82; Egyptians Transportation System v. L. & N. R. Co., 321 Ill. 580, 152 N.E. 510; Commerce Comm. v. Wabash R. Co., 335 Ill. 484, 167 N.E. 64; Roy v. Commerce Comm., 322 Ill. 452, 153 N.E. 648; Superior Motor Bus Co. v. Community Bus Co., 320 Ill. 175.

Section 73 of the Code of 1930 provides that certiorari may be had to review the judgments of all tribunals inferior to the circuit court, whether an appeal be provided for or not; and this court has held that this statute applies to the Railroad Commission, which is an inferior tribunal.

G. & S. I. R. R. v. Wirt Adams, and Y. & M. V. R. R. v. Wirt Adams, 85 Miss. 772; 4 Ency. Pl. & Pr. 10; Railroad v. Adams, 77 Miss. 777, 25 So. 355; Robinson v. Mhoon, 68 Miss. 712, 9 So. 887.

J. Morgan Stevens, of Jackson, for appellee.

On an appeal by certiorari the reviewing court is limited to questions of law appearing on the face of the record.

Florida Motor Lines, Inc. v. State Railroad Commission, 132 So. 851; People ex rel. New York-Queens Gas Co. v. McGall et al., Commissioners, 245 U.S. 345, 38 S.Ct. 122, 62 L.Ed. 337; Railroad v. Adams, 85 Miss. 772; Board of Supervisors v. Melton, 123 Miss. 615, 86 So. 369; Dickson v. Town of Centreville, 157 Miss. 490, 128 So. 332; Board of Supervisors v. Young, 156 Miss. 644, 126 So. 469; Federal Credit Co. v. Grocery Co., 153 Miss. 494, 121 So. 114; Federal Credit Co. v. Zepernick Grocery Co., 120 So. 173.

Reviewing court cannot substitute its judgment for the judgment of the commission.

Sections 72 and 73, Mississippi of 1930; 5 R. C. L., Certiorari, par. 11, page 260; Footnote 74, 42 C. J. 692; Collins v. Public Serv. Com., 84 Pa.Super. 58; Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173; Hammond Lbr. Co. et al. v. Public Service Commission of Oregon, 9 A. L. R. 1223; Grand Rapids & I. R. Co. v. Michigan R. Commission, 188 Mich. 108, P. U. R. 1915F, 805, 154 N.W. 15; Mill Creek Coal & Coke Co. v. Public Service Commission, 7 A. L. R. 1081; Norfolk & W. Railroad Co. v. Public Service Commission, 8 A. L. R. 1055.

OPINION

Smith, C. J.

The appellee, Mississippi Railroad Commission, granted the Motor Transportation Company, Inc., a certificate of convenience and necessity under section 7120, Code 1930, for the operation of a motor transportation line from Jacksn, Mississippi, to Meridian, Mississippi, over highway No. 80. The appellant, a railroad company, operating between the two cities, appeared at the hearing, objected to the granting of the certificate, and requested the commission to grant it an appeal therefrom, which request was never acted on by the commission. Thereafter the appellant obtained a writ of certiorari from the judge of the court below directing the commission to certify the record in the case to that court. When the cause came on to be heard in the court below, the Motor Transportation Company filed a motion to quash the writ of certiorari; and the court, after examining the record, including the transcript of the evidence heard by the Railroad Commission which had been included in the commission's return to the writ, rendered a judgment, reciting: "That there is no error of law arising or appearing on the face of the record and proceedings and that motion to quash the writ of certiorari should be sustained. It is therefore, considered by the court, that the writ of certiorari, issued by this court to review the order of the Mississippi Railroad Commission herein, be and the same is hereby quashed, and the order of said Commission appealed from is hereby affirmed."

The petition for the writ of certiorari does not point out any error of law appearing on the face of the record proper, and there is no contention in this court that such appears; the appellant's contention being simply that it appears from the transcript of the evidence on which the commission acted that the certificate should not have been granted--in other words, that the commission wrongly decided a question of fact presented by the evidence. The transcript of the evidence was no part of the record proper and should not have been examined by the court b...