Opinion
Nos. 31814, 31814 1/2.
September 30, 1935.
1. AUTOMOBILES.
Order of Railroad Commission denying bus company's claim to operate bus schedule was legislative and administrative, and not judicial, and was not reviewable on appeal (Code 1930, sections 7119-7129).
2. CONSTITUTIONAL LAW.
Refusal of railroad company to permit bus company, which had leased its franchise to operate bus schedule to competing company, to operate bus schedule, did not deprive bus company of its franchise without due process, since bus company had remedy in court if competing company had deprived it of its franchise rights (Code 1930, sections 7119-7129).
APPEAL from circuit court of Hinds county; HON. JULIAN P. ALEXANDER, Judge.
Chandler, Shepherd, Owen Heiskell, of Memphis, and Watkins Eager, of Jackson, for appellant.
The case is reviewable on appeal under section 7125, Mississippi Code.
Sec. 156, Miss. State Constitution; Knox, Atty.-Gen. v. Dantzler Lbr. Co., 114 So. 873, 148 Miss. 834; Y. M.V.R.R. Co. v. Miss. R.R. Comm., 148 So. 430, 166 Miss. 359; Western Union Tel. Co. v. Miss. R.R. Co., 74 Miss. 80, 21 So. 15.
The franchise of appellant was property of which it could only be deprived after complaint upon part of the State and a full hearing.
Teche Lines, Inc., v. Bd. of Supervisors, 142 So. 24, 165 Miss. 594; Tonkel v. Riteman, 163 Miss. 216, 141 So. 344.
The appellant became the owner of a piece of personal property, consisting of a franchise right to operate motor transportation vehicles one trip each way per day between Vicksburg and Jackson. There was no cancellation of the right. With the right in full force and effect, the Mississippi Railroad Commission, at the instance of the Motor Transportation Company, deprived the appellant of the benefit of its franchise by refusing to permit it to resume its schedule. That such construction violates the Fourteenth Amendment to the Constitution of the United States, as well as the Bill of Rights of the state of Mississippi, is perfectly clear.
Frost v. Corporation Commission, 278 U.S. 515, 73 L.Ed. 483; Dorr v. Levee Comm'rs, 28 So. 938.
The Mississippi Railroad Commission without authority to destroy or revoke franchise of appellant by refusing to assign to it a schedule.
Sec. 7119, Miss. 1930 Code.
As a matter of fact, Mississippi Railroad Commission committed error, apparent upon face of the record, in denying to appellant its franchise right of resuming its schedule over highway 80, between Vicksburg and Jackson, and in holding that appellant was in same position as if applying for franchise ab initio, and the circuit court of Hinds county committed error in affirming error of the Mississippi Railroad Commission.
Orders of Mississippi Railroad Commission are reviewable by certiorari.
Secs. 72, 73, Miss. 1930 Code; G. S.I.R.R. Co. v. Adams, 85 Miss. 772; Power v. Robertson, 130 Miss. 188, 93 So. 769; Ferguson v. Seward, 146 Miss. 613.
Courts in granting writs of certiorari review only errors of law appearing upon face of the record.
Y. M.V.R.R. Co. v. Miss. R.R. Comm., 152 So. 649; Cumberland T. T. Co. v. State, 135 Miss. 835, 100 So. 378; Federal Credit Co. v. Zepernick Groc. Co., 153 Miss. 494.
Certiorari proper method of testing legality of assessment against railroad company.
I.C.R.R. v. Miller, 141 Miss. 223, 106 So. 636.
The error of law complained of appears on face of record eliminating the stenographer's notes.
Briscoe v. Buzbee, 143 So. 407, 163 Miss. 574.
On the question as to whether or not the Railroad Commission in the instant case was a quasi-judicial tribunal see:
I.C.R.R. Co. v. Miss. R.R. Commission, 109 So. 868, 143 Miss. 805; Cumberland Tel. Tel. Co. v. State ex rel. Potter, Attorney-General, 135 Miss. 835, 100 So. 378; Mabry v. School Board, 162 Miss. 632; 2 Bouv. Law Dict., p. 1918; Union Pac. R. Co. v. United States, 99 U.S. 761, 25 L.Ed. 496; Merrill v. Sherburne, 1 N.H. 204, 8 Am. Dec. 52, 31 Am. Law Reg. (N.S.) 438.
Harry M. Bryan, of Jackson, and E.R. Holmes, Jr., Assistant Attorney-General, for appellee.
The direct appeal to the circuit court attempted to be prosecuted by the Dixie Greyhound Lines was an ingenious attempt to bring before the circuit court the record of the evidence adduced before the Railroad Commission, counsel having in mind the decisions of this court in Yazoo M.V.R.R. Co. v. Mississippi Railroad Commission, 152 So. 649; Gulf S.I.R.R. Co. v. Mississippi Railroad Commission, 152 So. 650; Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173, 153 Miss. 494, 121 So. 114, wherein it was held that the statute permitting the circuit court on certaiorari to review the judgments of inferior tribunals, did not authorize an examination of the transcript of the evidence.
It is patent that the statute sought to be used for the purpose here is section 7125, Code of 1930.
An appeal is not a matter of right, and lies only when authorized by law.
Bridges v. Clay County, 57 Miss. 252; State ex rel. Brown v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124; Miller v. Kieth, 26 Miss. 166; Shapleigh Hardware Co. v. Brumfield, 130 So. 98, 159 Miss. 175; Hurdle v. State ex rel., 95 So. 514, 131 Miss. 517.
Section 7125 does not remotely prescribe any definite procedure at all. Under what reasoning can counsel for appellant here claim that the general statutes on appeal apply? There is no statute that can be pointed out, except sections 72 and 73 of the Code of 1930 which set up procedural privileges (and that is exactly what they are — privileges) by way of certiorari.
The learned circuit court below agreed with our contention that there is no statutory method of appealing directly to it from orders of the Railroad Commission; that "the appeal should be undertaken by certiorari, the proceedings by appeal will, for that reason, be dismissed."
No error apparent upon the face of the record and proceedings can possibly be shown for the reason that, as held in the case of Cumberland T. T. Co. v. State ex rel. Potter, Attorney-General, 100 So. 378, 135 Miss. 835, no appeal lies from the order of the commission while exercising a legislative function.
We desire to cite two cases decided by this honorable court, subsequent to that of Cumberland Telephone and Telegraph Co. v. State, 100 So. 379, 135 Miss. 835, and which follow the rule therein discussed and announced as to the power of the court to review certain orders of the Mississippi Railroad Commission.
I.C.R.R. Co. v. Miss. Railroad Commission, 109 So. 868, 143 Miss. 805; Mabray v. School Board of Carroll County, 137 So. 105, 162 Miss. 632.
The transcript of the evidence taken before the commission cannot here be considered and forms no part of the record.
Secs. 72, 73, Code of 1930; Yazoo M.V.R.R. Co. v. Mississippi Railroad Commission, 152 So. 649; Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 494, 120 So. 173, 121 So. 114.
There is no error of law apparent on the face of the record and proceedings.
It must be borne in mind that the commission in the case at bar did not pass on whether or not the Dixie Greyhound Lines had lost a franchise right or rights; the petition praying authority to operate a certain fixed schedule, for certain fixed rates, was denied. So far as any claimed right to the franchise is concerned, the commission entered no judgment; its order went to the question of whether or not public convenience and necessity required the operation by petitioners of schedules at rates sought to be charged. It was purely legislative, prospective in its application.
All franchises when they are originally granted to public utilities are inherently limited by and conditioned upon the right of the sovereign, under an exercise of its police power, to control the manner of their exercise. This is common learning.
The chapter on Supervision of Common Carriers (chapter 170, Code of 1930), indicates unquestionably that the matters made the basis of appellant's original petition herein were by the legislature intended to be dealt with by the commission in an administrative or legislative capacity. Acting within its jurisdiction the orders of the commission under its granted powers are the equivalent of direct acts of the legislature.
Argued orally by W.H. Watkins, Sr., for appellant, and by Harry M. Bryan, for appellee.
Appellant, Dixie Greyhound Lines, Inc., made application to the state Railroad Commission to recognize its claimed franchise right to operate on U.S. highway No. 80, between Jackson and Vicksburg, one round-trip passenger bus schedule per day. The Motor Transportation Company, an interested corporation, was given notice of the application and appeared and resisted the order sought by the Dixie company. There was a hearing on the pleadings and the evidence. The Railroad Commission denied the Dixie company's application. From that order the Dixie company undertook to appeal to the circuit court by certiorari and also under section 7125, Code 1930. There is a separate record embodying each appeal. A stenographic transcript of the evidence before the Railroad Commission was made a part of the record. The circuit court dismissed the appeal taken under section 7125, and in the certiorari case held that the action of the Railroad Commission was not judicial, but legislative, and affirmed the order of the commission. From that action of the circuit court appeals are prosecuted to this court.
The Pickwick Greyhound Lines, Inc., is the predecessor in title of the Dixie Greyhound Lines, the latter acquired the franchise and all the rights thereunder owned by the Pickwick company for passenger transportation between Jackson and Vicksburg. In August, 1929, the Motor Transportation Company and the Pickwick company were each owners of a franchise acquired from the Railroad Commission to operate four passenger bus schedules each way per day between Jackson and Vicksburg. There was litigation between those companies as to their respective rights under their franchises. Both companies recognized that eight schedules per day each way were more than the public convenience and necessity required; that four schedules each way per day were ample. In November, 1929, they entered into a contract by the terms of which the Motor Transportation Company was to operate three of the schedules of its selection and the Pickwick company the other. In September, 1930, the Pickwick company leased, with the approval of the Railroad Commission, its one schedule per day to the Motor Transportation Company. This lease contract was continued in force until October 10, 1932. On March 1, 1932, the franchise rights of the Pickwick company were acquired by the Dixie company with the approval of the Railroad Commission. The Dixie company, on the 10th of October, 1932, undertook to cancel, as it claimed it had the right to do, the lease to the Motor Transportation Company of the one-trip schedule and have it restored to it. The Motor Transportation Company answered the application, denying the Dixie company's right, and asking that its one schedule per day each way be canceled for certain reasons set out. The Railroad Commission found as a fact that the public convenience and necessity were fully met by four schedules each way per day being operated by the Motor Transportation Company, and therefore denied the Dixie company's claim to operate an additional schedule. In its order, however, the Railroad Commission refused to cancel any right the Dixie company had against the Motor Transportation Company.
We pass the question whether, under section 7125, Code 1930, the Dixie company had the right of appeal and bring up as a part of the record the evidence before the Railroad Commission. We also pass the question whether the evidence before the Railroad Commission is properly a part of the record on appeal by certiorari. We go directly to the question whether or not under the pleadings and the evidence the action of the Railroad Commission is reviewable on appeal. The determination of that question depends on whether or not the proceedings before, and the order of, the Railroad Commission are judicial in their nature or legislative and administrative, if the latter, the appeal must fail. That they were legislative and administrative, and not judicial, we think is settled by numerous decisions of the courts of this country, including our own. The question was gone over again in Cumberland Telephone Telegraph Company v. State, 135 Miss. 835, 100 So. 378, 379. In that case the fixing of telephone rates by the Railroad Commission was involved. The court held that the fixing of the rates was legislative and administrative and not judicial; that such action "was not a judicial decision of a present or past fact in controversy and demanding adjudication;" on the contrary, that it was laying down a rule of action for the future, therefore it was legislation. The powers of the Railroad Commission with reference to this subject are covered by sections 7119 to 7129, inclusive, Code 1930. They are large and complete. In fact, if there is any difference, the commission is given larger powers over transportation by motor vehicles than by railroad. The Railroad Commission is not only authorized to fix rates and schedules, but change and revoke the same. We are unable to see any judicial question here.
The Dixie company argues that the action of the Railroad Commission deprived it of its franchise, which is a property right, without due process. There is no merit in this contention. If the Dixie company has been deprived of any franchise right, it was not by the Railroad Commission, but by the Motor Transportation Company, for which it has remedy in the courts.
Affirmed.