Denver & R. G. W. R. Co. v. Public Service Commission

100 P.2d 552, 98 Utah 431, 1940 Utah LEXIS 19

• Court: Utah Supreme Court
• Decided: March 21, 1940
• Docket: Nos. 6126, 6127.
• Status: Published

Opinions

PRATT, Justice.

These two cases we shall consider together. In view of the number of litigants involved, we shall, for the sake of brevity, designate the parties as follows: The Transfer Company, as applicant; the Railroads, as protestants; and the Utah Public Service Commission, formerly the Public Utilities Commission, as the Commission. The Transfer Company is defendant in one case, No. 6126, and plaintiff in the other, No. 6127; the Railroads are plaintiffs in one, No. 6126 and defendants in the other, No. 6127; and the Commission a defendant in both cases.

The facts, so far as necessary to the decision, are these: April 3, 1936 the Transfer Company applied to the Commission for a contract motor carrier permit under the provisions of Chapter 65, Laws of Utah 1935. They recited in the application that they proposed to operate motor vehicles for the transportation of property on occasional hauls over all the highways of the State; that on March 15, 1933, and for 40 years prior thereto they had been engaged in that business; and that since that date (March 15, 1933) they had carried on that business under temporary permits. The provision of Chapter 65, Laws of Utah 1935, pertinent to our decision, reads as follows:

“Section 9. Contract Carrier — Intrastate Commerce — Permit.

“It shall be unlawful for any contract motor carrier to operate as a carrier in intrastate commerce without having first obtained from the commission a permit therefor. The commission shall grant on application to any applicant who was a contract motor carrier as defined by this act on the fifteenth day of March, 19E3, a permit to operate as a contract motor carrier on the same highways and to carry on the same type of motor service as he was prior to said date. Where said applicants were operating on all the highways of the state prior to said date, the permit shall authorize them to continue to operate on all of said highways. The commission shall furthermore grant on application to any applicant who received a permit to operate as a contract motor carrier between the fifteenth day of March, 1933, and the date on which this act takes effect, a permit to continue to operate in the same manner and over the same highways as the terms of said permit allowed.

“The commission upon the filing of an application for a contract motor carrier’s permit by any other person than those referred to above in this section shall fix a time and place for hearing thereon and shall give the same notice as provided in section 6 hereof. The commission shall also subpoena a member of the state road commission to be present at said hearing and said member or representative designated by said road commission shall offer testimony as to the character of the highway over which said contract motor carrier proposes to operate and the effect thereon; and upon the traveling public using the same. If, from all the testimony offered at said hearing, the commission shall determine that the highways over which the applicant desires to operate are not unduly burdened; that the granting of the application will not unduly interfere with the traveling public; and that the granting of the application will not be detrimental to the best interests of the people of the state of Utah and/or to the localities to be served, the commission shall grant such permit; provided, however, that any person aggrieved by the action of the commission- may, within thirty days after notice of the decision of the commission of which he is aggrieved, bring an action in the district court of this state for a plenary review thereof, in which said action the applicant for a contract motor carrier permit shall be plaintiff and the commission defendant. The place of the trial subject to the power of the court to change the same as provided by law shall be in the county in which the applicant, plaintiff in the action, resides. The commission shall be served with process as in other cases and within ten days after the commencement of said action, which shall operate to stay all further proceedings pending the decision of the district court during which pendency the commission shall grant the applicant a temporary permit to operate as a contract motor carrier. The hearing in the district court shall proceed as a trial de novo. The district attorney of the county in which such action is filed shall represent and defend the action on behalf of the defendant, the commission. * * * The commission shall act in accordance with said judgment.” (Italics added.)

On the same day the application was filed, the Commission granted it, and issued permit No. 125 authorizing the Transfer Company to engage in the transportation of property by motor vehicle over all the highways of the state. The action of the Commission in so granting the application was apparently upon the theory that applicants, by reason of their previous engagement in that line of work, were, under section 9 quoted above, entitled to the permit as a matter of right and without hearing. In the case of McCarthy et al. v. Public Service Commission et al., 94 Utah 304, 77 P. 2d 331, this court, upon application of the Railroads, and after argument and the submission of briefs, directed a hearing upon the application of the Transfer Company for such a permit.

After the hearing, in which the parties were present and submitted evidence, the Commission on January 19, 1939, made its findings and an order granting the application with certain limitations. Within the time allowed by law, both sides to the controversy filed applications for rehearing. Without further notice or hearing, and without taking further testimony, the Commission (with one commissioner dissenting) issued an amended order. The Commission then denied the applications for rehearing. Both parties filed their applications for rehearing as to the amended order. These applications were also denied. The Railroads filed an application in this court for a Writ of Certiorari (Case No. 6126). The Transfer Company also filed its application in this court for a Writ of Certiorari (Case No. 6127).

The cases were argued together and briefs have been submitted in each. With permission of this court, the Commission filed briefs in each case.

One of the questions submitted to us is this': Had this court, upon writ of certiorari, jurisdiction to hear these matters ? This question is not decided in the McCarthy case cited above. Apparently it was not raised by the parties. However that may be, it is directly before us now. The an swer to the question calls for an interpretation of that part of Section 9 following the word provided. If we find, therein a plain, speedy and an edequate remedy, we should not take cognizance of these two cases upon these writs. Section 104-67-2, R. S. U. 1933; County Board of Equalization of Kane County v. Tax Commission, 88 Utah 219, 50 P. 2d 418. Section 76-6-16, R. S. U. 1933, which provides for the review by writ of certiorari (which section is applicable generally to all procedure before the Public Service Commission), should, under such circumstances, be considered applicable to such cases before the Public Service Commission as are not otherwise covered by a plain, speedy and an adequate remedy in the ordinary course of law.

There are three classes of applicants who may get permits' under Section 9:' Those engaged in the contract carrier business on March 15, 1933; those granted a permit between that date and the effective date of the act, December 31,1935; and new applicants. Apparently, acting upon the theory that applicants under the first two classes would receive their permits as a matter of course, the Legislature wrote the procedural provisions only in the paragraph pertaining to new applicants. However, as we held in the McCarthy case, supra, that regularity of procedure required hearings as to protested applications under the first two classes, it follows that the procedural provisions for carrying the matters into the district courts are applicable to them as a method of reviewing those hearings.

What, then, is meant by a plenary review of the action of the Commission which shall proceed as a trial de novo? These same words are in italic^ in the quotation of Section 9, above.

The expression “trial de novo” has been used with two different meanings (3 Am. Jur. p. 356, sec. 815): (1) A complete retrial upon new evidence; (2) a trial upon the record made before the lower tribunal. Locally we find an example of the first in Section 104-77-4, R. S. U. 1933, covering appeals from the justice court to the district court — the case is tried in the district court as if it originated there. An example of the second meaning we find locally in our treatment of equity appeals wherein we say that the parties are entitled to a trial de novo upon the record. Jensen et al. v. Howell et al., 75 Utah 64, 282 P. 1034; Dahlberg v. Dahlberg, 77 Utah 157, 292 P. 214; Corey v. Roberts, 82 Utah 445, 25 P. 2d 940, 941; Sharp v. Bowen et al., 87 Utah 327, 48 P. 2d 905. We invite attention, also, to the Missouri case of State ex rel. Case v. Public Service Commission, 298 Mo. 303, 249 S. W. 955, 960. Which of these two meanings is contemplated by Section 9 quoted above?

Under the procedure as applied prior to the enactment of Chapter 65, Laws of Utah 1935, of which Section 9 is a part, the court’s review of the action of the Commission was limited to questions of law; the Commission’s findings of fact were final and not subject to review. See Chap. 47, Art. V, sec. 15, Laws of Utah 1917; also Section 4834, Compiled Laws of Utah 1917; and Sec. 76-6-16, R. S. U. 1933. We have passed upon this question in the following cases: Salt Lake City et al. v. Utah Light & Traction Co., 52 Utah 210, 173 P. 556; Bamberger Electric R. Co. et al. v. Public Utilities Commission of Utah, 59 Utah 351, 204 P. 314; Jeremy Fuel & Grain Co. et al. v. Public Utilities Commission, 63 Utah 392, 393, 226 P. 456; Los Angeles & Salt Lake R. Co. v. Public Utilities Commission, of Utah et al., 80 Utah 455, 15 P. 2d 358; and Los Angeles & S. L. R. Co. v. Public Utilities Commission et al., 81 Utah 286, 17 P. 2d 287. But in the 1935 law involved here, the Legislature has said that the court’s review of the Commission’s action shall be “plenary” — a plenary review, a full review, a complete review — and to make certain of this kind of a review, it provided that it “shall proceed as a trial de novo.” To review an action is to study or examine it again. Thus, “trial de novo” as used here must have a meaning consistent with the continued existence of that which is to be again, examined or studied. If, in these cases, the first meaning were applied to the use of the term “trial de novo” then one could not consistently speak of it as a review, as the Commission’s action would no longer exist to be re-examined or re-studied. There would be no reason for making the Commission a defendant to defend something that had been automatically wiped out by instituting the district court action.

What the Legislature has done by Section 9 is to increase the scope of the court’s review of the record of the Commission’s action to include questions of fact as well as questions of law. A submission to the court of the application, together with testimony other than the record of testimony before the Commission was not contemplated. The Legislature had in mind the second meaning when it used the word “trial de novo” here.

For cases discussing similar principles we invite attention to the following: Tri-City Motor Transp. Co. v. Great Northern Ry. Co. et al., 67 N. D. 119, 270 N. W. 100; and Russell v. Great Northern Ry. Co., 68 N. D. 447, 281 N. W. 239.

Those cases holding a contrary view seem to be based upon a differently worded statute: Texport Carrier Corporation v. Smith et al., U. S. D. C. Texas, 8 F. Supp. 28; and Railroad Commission of Texas et al. v. Rau, Tex. Civ. App., 45 S. W. 2d 413.

There are some decisions, however, we wish to distinguish from our own. They are those wherein the statutory provisions are in the nature of a suit to set aside the action of the public service body. In those cases, of course, testimony before the court is contemplated the same as in any suit to set aside a judgment. But, as is said in the following Kansas case, such an action is not contemplated as a review of the action of the public service body: Atchison, T. & S. F. Ry. Co. v. Public Service Commission, 130 Kan. 777, 288 P. 755, 757; R. S. 1923, 66—118. Quoting from their statute:

“* * * within thirty days from the making of such order, commence an action in a court of competent jurisdiction, against the public utilities commission as defendant, to vacate and set aside any such order, finding or decision of the public utilities commission * * * and such action shall be tried and determined as other civil actions.” (Italics added.)

The court said:

“The appellant availed itself of the relief prescribed by statute to have the order set aside and to enjoin its enforcement. That proceeding' was not an appeal, neither was it one for review of the former hearing, but it whs an application to a judicial tribunal for a trial de novo of the rights involved in the hearing before the commission.” See, also, In re Burnette, 73 Kan. 609, 85 P. 575.

The Legislature having provided a means of reviewing the Commission’s action in cases arising under Chapter. 65, Laws of Utah 1935, in which all questions submitted here earn be properly covered, as well as questions of fact, upon which we could not pass under these writs, we are of the opinion that these writs should be dismissed.

One more point before closing. We see no limitation upon the meaning of “any person aggrieved” by reason of the requirement that applicant shall be named plaintiff and the Commission named defendant in the district court action. In the McCarthy case cited above, we held that protestants were entitled to a hearing. Naturally, they would be entitled to a review of that hearing in case it terminated to their dissatisfaction. In Section 76-6-16, R. S. U. 1933, it is provided that “the applicant or any party * * ' * deeming himself aggrieved” may apply for a writ. It is quite evident that the Legislature did not have in mind that an aggrieved party meant only an applicant.

In view of our interpretation of Section 9, it is unnecessary to discuss the constitutional question raised by the Commission.

For the reasons given, the writs are vacated and set aside. Each party shall bear his own costs.

. MOFFAT, C. J., and LARSON, J., concur.