Judgment reversed with directions.
Jennings, Strouss, Salmon & Trask, J. A. Riggins, Jr., Henry S. Stevens, Burr Sutter; Baker & Whitney, all of Phoenix, attorneys for Appellant.
Jerman & Flynn, of Phoenix, attorneys for Appellee.
Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concur.
[70 Ariz. 67] Pacific Greyhound Lines, a corporation, as plaintiff (appellant) filed this action on February 6, 1946, in the superior court of Maricopa County, praying for injunctive and equitable relief against the defendant (appellee) Sun Valley Bus Lines, Inc., a corporation. The trial court found against [70 Ariz. 68] the plaintiff on all of the issues, including a specific finding that plaintiff was guilty of laches. Judgment was thereupon entered for defendant and this appeal followed.
The right of the defendant to maintain certain of its operations as a common motor carrier of passengers, their baggage and express in territory where the plaintiff claims to have the exclusive right to operate, is the matter in controversy.
Collateral attack -- Injunctive relief
At the outset we are met with defendant's contention that the instant suit is a collateral attack on the certificates of convenience and necessity under which it claims to be operating which were issued by the Arizona Corporation Commission. Defendant asserts that as a prerequisite to asking a court of equity for injunctive relief, it was necessary for the plaintiff to establish a lack of an adequate remedy at law. The legal remedy open to plaintiffs, so defendant contends, was to first apply to the Commission for a redress of its grievances, then if an adverse ruling was made to follow the statutory procedure for an appeal to the superior court. Plaintiff maintains that no question of collateral attack is presented for the reason it is not attacking the validity of defendant's lawfully issued certificates of convenience and necessity. It asserts that it recognizes the validity of such certificates issued to Sun Valley, but contends that the latter's operations are not in accordance with its certificates and are therefore unauthorized and illegal. In denying defendant's motion to dismiss, the learned trial court properly and necessarily held, and we think correctly so, that the instant proceeding was not a collateral attack upon the action of the commission in issuing the certificates to defendant. If a given certificate was issued by the Commission without jurisdiction, and such is shown from the records, then the rule prohibiting a collateral attack has no application.
In as much as the record discloses that the defendant was and is operating six schedules each way per day between Phoenix and Tucson, which operations are in direct competition with plaintiff, it is clear that if any of such operations carried on by defendant are illegal there is such an invasion of the plaintiff's rights as to entitle
the latter to injunctive relief against such illegal competition. Such is the effect of our holding in Northeast Rapid Transit Company v. City of Phoenix, 41 Ariz. 71, 15 P.2d 951.
The operations of the parties (as common carriers) here in question are so involved it would be most difficult to present a true picture by words alone, hence we incorporate herein a rough map or diagram, prepared by the plaintiffs, which depicts the comparative routes operated by both Greyhound and Sun Valley. This includes the location of the communities ...