Kunkle Transfer & Storage Co. v. Superior Court

526 P.2d 1270, 22 Ariz. App. 315, 1974 Ariz. App. LEXIS 474
CourtCourt of Appeals of Arizona
DecidedOctober 8, 1974
DocketNo. 1 CA-CIV 2698
StatusPublished
Cited by4 cases

This text of 526 P.2d 1270 (Kunkle Transfer & Storage Co. v. Superior Court) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kunkle Transfer & Storage Co. v. Superior Court, 526 P.2d 1270, 22 Ariz. App. 315, 1974 Ariz. App. LEXIS 474 (Ark. Ct. App. 1974).

Opinion

OPINION

EUBANK, Acting Presiding Judge.

This special action challenges the jurisdiction of the Superior Court to enjoin the operations of a common carrier while a complaint proceeding to interpret the carrier’s Certificate of Convenience and Necessity is pending before the Arizona Corporation Commission. We accept jurisdiction in order to resolve the conflict.

Petitioner, Kunkle Transfer & Storage Co., is an intrastate common carrier operating under Certificate of Convenience and Necessity No. 5739. Respondents, Pacific Motor Trucking Co. and O. N. C. Freight Systems, are intrastate common carriers operating under certificates issued by the Corporation Commission. Petitioner transports general freight intrastate under Commission rights granted in Docket No. 9512-S-5980. Certificate No. 5739, issued in this docket, was transferred to Robert W. Kunkle in 1946. At that time, it stated the holder’s transportation rights in the following manner:

“1. GENERAL FREIGHT (COMMODITIES). FARM PRODUCTS, MACHINERY AND BAGGAGE. (Except that part' covering the transportation of household goods and personal effects, including office furniture, store fixtures which require special handling)
2. LIVESTOCK
over the public highways designated as within a 25 mile radius of base of operations at PHOENIX, ARIZONA.”

In 1952, Kunkle transferred Certificate No. 5739 to Kunkle Transfer & Storage Co., an Arizona corporation. The Com[317]*317mission reissued the certificate to petitioner on a new form which read as follows:

“1. General Freight (Commodities) Farm products, machinery and baggage, except that part covering the transportation of household goods and personal effects, including office furniture, store fixtures which require special handling.
2. Livestock within a 25 mile radius of base of operations at Phoenix, Arizona.” (Emphasis added).

The substantive enlargement of geographical area granted in the 1952 certificate is alleged to be based on a clerical error. Certificate No. 5739 has been renewed for successive periods, since 1952, in this form with a current expiration date of December 31, 1978.

The Commission became aware of unrestricted statewide operations by petitioner in 1973, and on July 17, 1973, issued an Order to Show Cause directing Kunkle to show cause why the Commission should not restrict its operations to a 25-mile radius of Phoenix. There followed mesne motions and hearings before the Commission and Superior Court and finally a hearing on the Order to Show Cause was scheduled for March 19, 1974. On January 16, 1974, however, respondents filed a complaint in the Superior Court of Maricopa County to enjoin Kunkle from transporting general freight as a common carrier outside a 25-mile radius of Phoenix. As a result, the Commission held no hearing on its Order to Show Cause, but instead authorized the Attorney General to intervene as either a party plaintiff or defendant in the Superi- or Court proceeding. The Attorney General did not intervene, and on April 2, 1974, the trial court granted respondents’ application for a preliminary injunction restricting petitioner’s general freight business to a 25-mile radius of Phoenix.

Petitioner’s basic contention here is that the Superior Court proceeding was an impermissible collateral attack upon a decision of the Commission. See Tucson Rapid Transit Co. v. Old Pueblo Transit Co., 79 Ariz. 327, 289 P.2d 406 (1955). In Arizona, the Corporation Commission is the agency authorized to regulate common carriers, their routes and transportation rights. Its decisions are conclusive and subject to review by the courts only in the manner provided by statute (A.R.S. §§ 40-253 and 40-254). In the absence of pursuing the statutory remedy, Commission orders or decisions are not subject to collateral attack. Tucson Rapid Transit Co. v. Old Pueblo Transit Co., supra; Arizona Public Service Co. v. Southern Union Gas Co., 76 Ariz. 373, 265 P.2d 435 (1954); Phoenix Ry. Co. v. Lount, 21 Ariz. 289, 187 P. 933 (1920). See also Arizona Tank Lines, Inc. v. Arizona Corporation Commission, 18 Ariz.App. 390, 502 P.2d 539 (1972).

In the instant case, the direct attack procedure outlined by statute was not followed to test the validity of Certificate No. 5739. Instead of awaiting the Commission’s determination of the geographical restrictions applicable to the certificate, respondents sought to restrict Kunkle’s operations by obtaining injunctive relief in the Superior Court. Such a procedure to obtain review of a Commission decision (as represented by the certificate issued) is permissible in only limited situations. First, where a common carrier is not the holder of the certificate under which it claims to be operating. Northeast Rapid Transit Co. v. Phoenix, 41 Ariz. 71, 15 P. 2d 951 (1932). Second, where the certificate issued by the Commission is void for lack of jurisdiction because of the ex parte nature of the proceeding from which it issued. Tucson Warehouse & Transfer Co. v. Al’s Transfer, Inc., 77 Ariz. 323, 271 P. 2d 477 (1954); Pacific Greyhound Lines v. Sun Valley Bus Lines, 70 Ariz. 65, 216 P. 2d 404 (1950). Third, where there is clear evidence before the trial court that a carrier is exceeding the scope of its certified rights. Tucson Rapid Transit Co. v. Old Pueblo Transit Co., supra. Respondents contend that the latter two exceptions to the general rule prohibiting collateral attack are applicable to this case.

[318]*318In our opinion, the exceptions listed above are not applicable in this case because of the procedural posture of the present action. Al’s Transfer involved an ex parte order by the Commission rescinding its prior revocation of a certificate. Sun Valley involved the ex parte issuance of a certificate by the Commission during a wartime emergency. Old Pueblo involved the situation in which a judicial hearing was the only proceeding initiated to determine certificated rights. In none of these cases was a complaint proceeding pending before the Commission when the court attempted to assert jurisdiction to decide the case. We need not determine whether judicial action would have been appropriate in the instant case if a hearing had not been pending before the Commission. The reversal of this cause is mandated by our holding that where the Commission has properly asserted jurisdiction to construe a certificate, a collateral, simultaneous action to determine the same issues will not lie in the courts.

The Corporation Commission is authorized by the Constitution and laws of this State to regulate, control and supervise common carriers within the State. To that end, it is vested with the power to institute and entertain hearings and render decisions therein. The initial construction of a certificate is clearly within the jurisdiction of the Commission (A.R.S. § 40-252).

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Bluebook (online)
526 P.2d 1270, 22 Ariz. App. 315, 1974 Ariz. App. LEXIS 474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kunkle-transfer-storage-co-v-superior-court-arizctapp-1974.