S. Del GEORGE, d.b.a. Paul Alley Livestock Transportation Company; Hopper Transportation Company, a corporation; and John Calhoun and J. W. Calhoun, copartners d.b.a. Calhoun Brothers Transportation Company, Appellants,
ARIZONA CORPORATION COMMISSION, Appellee.
[83 Ariz. 388] Minn e & Sorenson, Phoenix, for appellants.
Robert Morrison, Atty. Gen., Joseph Lewis, Asst. Atty. Gen., Howard Gibbons, Randall & Chatwin, Phoenix, of counsel, for appellee.
ROBERT S. TULLAR, Superior Court Judge.
From the year 1925 up to January 3, 1945, H. Grady Harrison had been certificated by the Arizona Corporation Commission to transport freight and baggage over the public highways of Arizona 'in Payson and vicinity.' Although this was only what is called a 'vicinity certificate,' the record indicates that prior to 1937 the Commission permitted the hauling of livestock anywhere in Arizona under such a certificate.
During the year 1937 the Commission promulgated Order No. 133-A, the relevant portion of which is as follows:
'Hereafter, no livestock shall be transported under and by virtue of any certificate of public convenience and necessity authorizing the transportation of property as a vicinity carrier. Any holder of a vicinity certificate who, on the date hereof, was engaged in the business of transporting livestock under[83 Ariz. 389] a vicinity certificate and who has so transported livestock to the date of application, being properly equipped so to do, shall, upon application therefor and furnishing this Commission on or before October 1, 1937, satisfactory evidence of such bona fide transportation, be entitled to and shall be issued a certificate of public convenience and necessity authorizing the transportation of livestock within the State of Arizona. Livestock permits will be subject to transfer only after a public hearing and justification therefor.'
In the latter part of December, 1944, Harrison caused the affidavits of two Arizona residents to be filed with the Commission in which it was stated that prior to October 1, 1937, Harrison had prepared the kind of application required by Order 133-A for the purpose of protecting the right he had theretofore exercised to transport livestock throughout Arizona. It was stipulated at pre-trial conference that Harrison did not file said application.
On the strength of these affidavits the Commission, without hearing, caused to be issued what was called a 'Corrected Certificate,' which purported to modify Harrison's then existing certificate by adding to it the words, 'livestock within the State of Arizona.' In 1949 the Commission issued Harrison a renewal certificate which also contained the provision for statewide livestock rights.
In 1951 Harrison applied to the Commission for authority to transfer his certificate. A hearing was had at which the appellants protested the granting thereof insofar as the statewide livestock rights were concerned on the ground that the Commission had no jurisdiction to enlarge Harrison's certificate without proper application, notice and public hearing. Despite the protests the application for transfer was granted, petition for rehearing was denied, and an appeal therefrom was duly taken to the Superior Court in Maricopa County wherein appellants were plaintiffs and appellees, the then members of the Commission, were defendants.
The trial court affirmed the action of the Commission, apparently on the theory that the requirements of Order 133-A could be waived by the Commission; motion for new trial was denied, and this appeal was duly perfected.
Appellants, who are competing carriers, have at all times taken the position that the Commission granted the 'Corrected Certificate' without jurisdiction so to do. Hence, they contend, the Commission's act is subject to collateral attack. It is the Commission's position that its order is final and not now reviewable, that the Commission had the power to make such an order ex parte, and that the appellants are barred by laches.
A.R.S. § 40-607 (Sec. 66-506, A.C.A.1939) prescribes the method for securing[83 Ariz. 390] a certificate of convenience and necessity. This requires an application duly filed and a prescribed period of notice which must be mailed to interested parties and published in a newspaper. The requirements of this statute must be met before the Commission has any power or jurisdiction to act further in the matter. Tucson
Warehouse & Transfer Co. v. Al's Transfer, Inc., 77 Ariz. 323, 271 P.2d 477.
It is conceded that no attempt was made to comply with this statute. The Commission contends, however, that under Order 133-A 'vicinity carriers' who had engaged in the transportation of livestock might continue to do so under an exercise of a 'grandfather right,' without further requirement than that the provisions of the said order be complied with. And, since there is no provision in the order for notice or ...