ARIZONA CORPORATION COMMISSION, WILSON T. WRIGHT, Chairman and Member of the Arizona Corporation Commission, W. M. COX and AMOS A. BETTS, Members of the Arizona Corporation Commission, Appellants,
HALLIE B. HOPKINS, EARL C. HAM, FLOYD E. JONES, C. M. SIMMONS, A. W. SMITH, G. F. LONG, N. GENE SMITH, MONICO RICO, J. H. UNDERHILL, Doing Business as UNDERHILL TRANSFER, and THOMAS C. FAY, Doing Business as PEOPLES TRANSFER, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, Mr. J. M. Johnson and Mr. Albert M. Garcia, his Assistants, for Appellants.
Messrs. Strouss & Salmon, for Appellees.
[52 Ariz. 175] ROSS, J.
This is an appeal by the Corporation Commission, hereinafter referred to as the commission, from a judgment of the superior court of Maricopa county vacating and setting aside a certificate of convenience and necessity issued by such commission on March 31, 1937, to P. J. Gragnon, Jr., as a common carrier by motor vehicle of farm products in the city of Yuma and vicinity with a radial area of twenty-five miles.
The appellees were at the time holders of certificates of convenience and necessity and operated as common carriers of farm products in the same territory. They appeared by an agent at the hearing of Gragnon's application for a certificate and protested against his being granted a certificate on the grounds that he had not shown "that the operators in that territory are not giving satisfactory service and... that his services are necessary." The commission ordered the issuance of a certificate of convenience and necessity to Gragnon at the hearing.
On April 17, 1937, the appellees filed with the commission a petition for a rehearing, as provided for in section 719, Revised Code of 1928, the grounds of such petition being that the territory Gragnon proposed to operate in was, at the time of his application and had been for a long time prior thereto, occupied and served by the appellees under certificates of convenience and necessity, with no complaint as to the service, and that they had not been requested or directed by the commission to extend or improve the service, and that by reason thereof the commission was without jurisdiction and authority to entertain Gragnon's application or to make the order issuing to him a certificate.
[52 Ariz. 176] On April 19, 1937, the petition for rehearing was denied.
Thereafter, and within the time fixed by statute (sec. 720, Id.), the appellees commenced this action against the commission to vacate and set aside the commission's order or decision finding that the public convenience and necessity require the proposed service by Gragnon and setting forth in their complaint as grounds therefor the following reasons:
"That the Arizona Corporation Commission has no jurisdiction to issue a certificate of convenience and necessity in said territory for the reason that said territory is now, and was at the time of said application and hearing, served by common motor carriers and (1) no complaint has been made concerning the service rendered in said territory by existing common motor carriers, (2) the Arizona Corporation Commission has issued no order requiring existing common motor carriers to improve the service now rendered in said territory, and (3) the existing common motor carriers in said territory have not refused to provide service in said territory satisfactory to said Arizona Corporation Commission."
The defendants in their answer to the complaint admitted practically all its allegations except they "allege that existing
common motor carriers in said territory have failed and refused to provide service in said territory satisfactory to said Arizona Corporation Commission." There is no evidence that the commission ever ordered appellees to improve their service or that there was ever any finding that the service was unsatisfactory.
The case was tried by the court without a jury and resulted in a judgment vacating and canceling the certificate of convenience and necessity issued to Gragnon, and from the ...