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Tucson Rapid Transit Co. v. Old Pueblo Transit Co.

Supreme Court of Arizona

November 8, 1955

TUCSON RAPID TRANSIT COMPANY, a corporation, Appellant,
OLD PUEBLO TRANSIT COMPANY, a corporation, Appellee.

Page 407

Page 408

[79 Ariz. 328] Darnell, Robertson, Holesapple & Spaid, and Clifford R. McFall, Tucson, for appellant.

Boyle, Bilby, Thompson & Shoenhair, Tucson, for appellee.

UDALL, Justice.

Old Pueblo Transit Company as plaintiff (now appellee) commenced this action praying for injunctive relief against the defendant (appellant) Tucson Rapid Transit Company. The defendant filed a counterclaim asking similar relief against the plaintiff, i. e., each party sought injunctive relief against the other for the respective operations complained of.

[79 Ariz. 329] The case was tried upon plaintiff's complaint and defendant's counterclaim before the court, sitting without a jury, and at the conclusion thereof the court entered a decree granting plaintiff certain injunctive relief and denying the defendant the relief prayed for in its counterclaim. Defendant's motion for judgment or in the alternative for a new trial was denied, and this appeal followed.

For the sake of brevity the appellant-defendant, Tucson Rapid Transit Company, will hereafter be referred to as TRT, and the appellee-plaintiff, Old Pueblo Transit Company, will be referred to as OPT, and since the latter is the successor in title and interest of Roy Laos and Occidental Bus Lines, the term OPT should be understood, where required, as including such predecessors in interest.

TRT and OPT commenced the operation of motor bus service for passengers in and around Tucson about the years 1925-26. Generally speaking the operations of OPT were confined to routes and territory south and west of the center of Tucson, and TRT confined its operations to the north and east parts of the city. However, both companies maintained terminals in downtown Tucson. While there is no controversy in this case as to the nature and extent of the operating rights of the respective parties up to the year 1934, nevertheless the exhibits admitted in evidence, which are included in the voluminous record certified up to us on this appeal, include all proceedings had before the Arizona Corporation Commission (hereinafter termed the Commission) under the TRT and OPT dockets from the year 1925 to date of trial.

This suit in the main involves the competitive operations of the respective parties along the now heavily populated South Sixth Avenue, the main traffic artery south from downtown Tucson. South Stone Avenue, another main southbound street, flows into Sixth Avenue at 18th Street, which is about one-half mile south from the intersection of Congress and Stone-the generally accepted center of the city. The U. S. Veterans' Hospital is on Sixth Avenue about three miles south from the center of the city. The operations of OPT which were brought under attack by TRT's counterclaim are those north-south runs from President Street-which is one of the eastwest streets south of the tract upon which the Government Hospital is located-to downtown Tucson. The competitive operations of TRT for which OPT was granted injunctive relief under its original complaint involve those over the route on South Sixth Avenue and Nogales Highway from President Street to a point about five miles further south, where the Tucson Municipal Airport is now located.

By legislative enactment, Sec. 66-506, A.C.A.1939, and this court's uniform interpretation thereof, this State has been and now is definitely committed to the doctrine of 'regulated monopoly' of common carriers rather than that of 'restricted competition'. [79 Ariz. 330] Corporation Commission of Arizona v. People's Freight Line, Inc., 1932, 41 Ariz. 158, 16 P.2d 420; Pacific Greyhound Lines v. Sun Valley Bus Lines, 70 Ariz. 65, 216 P.2d 404. Notwithstanding this commitment the operations of TRT and OPT on South Sixth Avenue have been handled by the Commission in such a manner as to now bring these common carriers into a full-scale competitive position along the entire eight-mile route, thereby defeating

Page 409

the purpose of the statute. It may be well-nigh impossible for the courts to unscramble this unworkable and improper situation that has grown up, like 'Topsy', but at least the learned trial court has made a commendable start in that direction.

There are two matters in issue on this appeal: first, the granting by the trial court of an injunction on OPT's complaint against the operations of TRT in excess of its certificated rights on South Sixth Avenue; and second, the denial of TRT's counterclaim seeking to enjoin certain operations of OPT on this Avenue between President Street and Congress. The facts being essentially different we shall for clarity's sake treat these two phases of the appeal separately, and where there is a conflict in the evidence, or inferences to be drawn therefrom we shall, under our well-established rule, consider it in the light most favorable to a sustaining of the judgment.

Original Complaint

For many years Roy Laos, doing business under the name of Occidental Bus Lines, was operating as a common carrier in the south part of Tucson. Later, on November 1, 1939, he was issued a certificate of convenience and necessity to serve quite an extensive area south of Indian School Road and the Veterans' Hospital, but north of the present site of the municipal airport. On April 25, 1941, Occidental was issued a certificate to operate from President Street (which is one block south of Indian School Road) south on South Sixth Avenue, then over to Nogales Highway and south to Los Reales Road, thence on out to the San Xavier Mission. This route gave bus service to and past the site of what is now known as the Municipal Airport. A transfer of all these rights was made to OPT in the year 1949, and the latter's present certificate, which include this route by the airport, has been extended by the Commission to the year 1959. The validity of OPT's certificates to serve this territory is not questioned.

After the United States' entry into World War II, the Federal Government, in the year 1942, made preparations to build a Modification Center for the Consolidated Vultee Aircraft Corporation on what is now the Municipal Airport property. This, it was anticipated, would involve the employment of several thousand persons at such plant. TRT made application to the [79 Ariz. 331] Commission on June 5, 1942, seeking a certificate of convenience and ...

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