[81 Ariz. 138] Shimmel, Hill & Cavanagh and Rouland W. Hill, Phoenix, for petitioner.
Robert Morrison, Atty. Gen., and A. Michael Bernstein, Asst. Atty. Gen., for respondents.
Petitioner, Whitfield Transportation, Inc., a corporation, instituted this original proceeding in certiorari against respondent Arizona Corporation Commission, and the individual members thereof, for the purpose of testing the legality of an ex parte order, entered May 11, 1956, by the Commission upon its own motion, rescinding certificate of convenience and necessity No. 6370 theretofore issued to petitioner.
The procedural steps giving rise to the instant petition for certiorari are as follows:
1. On December 15, 1952, petitioner was issued certificate of convenience and necessity No. 6370 to transport petroleum products as a common carrier in the state of Arizona, and it has been engaged in such business since that time under original authorization and an amended certificate dated April 7, 1954.
2. Reliable Transportation Company, a corporation, Arizona Tank Lines, Inc., a corporation, and Arizona-Pacific Tank Lines (who were the real parties in interest) opposed the granting of such certificate to petitioner, and, when their motion for rehearing before the Commission was denied, they instituted on January 29, 1953, a civil action under section 69-249, A.C.A.1939 (now section 40-254(A), A.R.S.), in the Superior Court of Maricopa County to set aside such certificate. Petitioner here intervened in said action and the matter was heard de novo.
3. This action lay dormant for three years when the plaintiffs (carriers above named) filed a motion for summary judgment. The motion was granted on April 2, 1956, and judgment was entered against the Commission and the intervenor, vavating and setting side said amended certificate.
4. Intervenor (petitioner here), on April 10, 1956, perfected an appeal from this summary judgment and that matter is now pending before us (our docket No. 6284). However, as we see it, in determining this certiorari matter we are not concerned with the merits of that appeal.
5. While the above appeal was pending in this court, the respondent Commission without giving notice to petitioner entered [81 Ariz. 139] an ex parte order vacating and setting aside said certificate.
Upon this record petitioner applied for and was granted a writ of certiorari directed to the Commission-the latter was, inter alia, commanded to desist pendente lite from further proceedings to enforce its order. Petitioner contends that the Commission in entering such order acted wholly without jurisdiction and that the order is therefore null and void. This is the basic question to be determined on this review.
At the outset we are confronted with a motion to dismiss the petition for writ of certiorari. It challenges our jurisdiction to issue certiorari in this matter, the bases for such contention being, that: (1) the petitioner had a plain, speedy and adequate remedy at law by bringing an action in the superior court; (2) in the pending appeal (cause No. 6284, supra) the petitioner may obtain the relief sought herein; (3) the Commission acted wholly within its jurisdiction in canceling the certificate of convenience and necessity in question. This last contention will be considered later in the opinion.
We are of the view as to point (1) that on the record before us petitioner had no plain, speedy, and adequate remedy at law. Admittedly no direct appeal would lie from such order, and it would certainly create an anomalous situation to force petitioner to commence a circuitous new action in the superior court under section 40-254(A), A.R.S., which is not an appeal but a new and independent action, to void the Commission's order if in fact that tribunal acted without jurisdiction. See, Corporation Commission of Arizona v. Peoples Freight
Line, Inc., 41 Ariz. 158, 16 P.2d 420. Furthermore, it is completely illogical for respondents to contend that the pending appeal furnishes an avenue for relief, where the Commission's action in canceling the certificate in question, during the pendency of the appeal, might well make a judgment to be entered in this matter an empty shadow. Nor does this review of the narrow jurisdictional question give petitioner what respondents maintain amounts to 'two bites at the same cherry'.
Therefore, we are of the opinion that under the statute section 12-2001, A.R.S., and our holding in Mertropolitan Lines v. Brooks,70 Ariz. 344, 220 P.2d 480, petitioner properly applied for certiorari as it is the only appropriate remedy to test the exercise of jurisdiction by the Commission in ...