Nevada-California Transportation Co. v. Public Service Commission

OPINION By the Court, Taber, C. J.: In February 1938 petitioner obtained from the public service commission a certificate of convenience and *312 necessity, authorizing it to transport freight as a common carrier on the state highway between Reno and Tonopah and certain intermediate points. In May of the same year, Tonopah & Goldfield Railroad Company, Railway Express Agency, Inc., Pacific Motor Transport Company, and Southern Pacific Company commenced an action in the First judicial district court, Ormsby County, against the public service commission, the members of that commission, and said Nevada-California Transportation Company, Inc., praying that the order granting petitioner said certificate of convenience and necessity be vacated and set aside. Defendants demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and upon the further ground that said district court had no jurisdiction of the subject matter of the action. The demurrer was overruled, and the commission and petitioner then petitioned this court for a writ of prohibition, which was denied. Public Service Commission v. First Judicial District Court of Ormsby County, 59 Nev. 91, 85 P. (2d) 70. Defendants, in said district court action, then answered the complaint. The cause came on for trial on April 17, 1939. When the taking of evidence had been concluded, the district court found that evidence introduced by the plaintiffs was different from and additional to that offered upon the hearing before the commission, and transmitted a copy of such evidence to the commission, pursuant to subdivision (b) of section 6133 N. C. L. 1929. Section 6133 is the section under which said district court action was commenced, and subdivision (b) reads as follows: “If, upon the trial of such action, evidence shall be introduced-by the plaintiff which is found by the court to be different from that offered upon the hearing before the commission, or additional thereto, the court, before proceeding to render judgment, unless the parties of such action stipulate in writing to the contrary, shall trasmit a copy of such evidence to the *313 commission, and shall stay further proceedings in said action for fifteen (15) days from the date of such transmission. Upon receipt of such evidence the commission shall consider the same, and may alter, modify, amend, or rescind its orders relating to such rate or rates, fares, charges, classifications, joint rate or rates, regulation, practice, or service complained of in said action, and shall report its action thereon to said court within ten days from the receipt of such evidence.” After receiving said evidence the commission, having considered the same, rescinded its previous order granting' a certificate of convenience and necessity to petitioner, and reported its action to said district court on June 13, 1939. Thereupon the court, upon motion of the plaintiffs, and in compliance with the provisions of subdivision (c) of section 6133 N. C. L. 1929, dismissed the action. Defendants moved for a new trial, which was denied. Defendants then appealed to this court, but the appeal was dismissed on January 4, 1940. Nevada-California Transp. Co. v. Tonopah & Goldfield R. Co., 60 Nev. 14, 97 P. (2d) 433. While the appeal was pending, Nevada-California Transportation Company, Inc., on November 13, 1939, petitioned this court for a writ of certiorari, basing its petition upon the grounds: (1) that in rescinding the order granting petitioner a certificate of convenience and necessity, the commission exceeded its jurisdiction; (2) that in rescinding said order, the commission was exercising judicial functions; and (3) that there was no appeal from the commission’s order of rescission, nor any plain, speedy and adequate remedy. Respondents have moved this court to quash the writ and dismiss this proceeding, upon the ground that the commission, in entering the order complained of, was not exercising judicial functions. As this court is of the opinion that the commission, in making' the order of rescission, did not exceed its jurisdiction, and regularly pursued its authority, it *314 becomes unnecessary to rule on the motion to quash and dismiss or to decide whether petitioner had or has any plain, speedy and adequate remedy. Some of the contentions made by petitioner have heretofore been passed upon by this court in the case of Public Service Commission v. First Judicial District Court of Ormsby County, 59 Nev. 91, 85 P.(2d) 70, in which it was held that an action to vacate an order of the public service commission granting a certificate of convenience and necessity may be maintained in the district court under the provisions of section 6133 N. C. L. 1929. The first part of the second sentence in the fifth paragraph of section 6137 N. C. L. 1929 should be read in connection with said section 6133. It reads as follows: “Every order refusing or granting any certificates of public convenience, or granting or refusing permission to discontinue, modify, or restrict service, as provided in this section, shall be prima facie lawful from the date of the order until changed or modified by the order of the commission or in pursuance of section 33 of this act; * * Petitioner contends that the order of rescission was invalid because the clear provisions of subdivision (b) of section 6133 N. C. L. 1929 were not complied with, the commission having failed to report its action to the trial court within ten days from the receipt of the copy of evidence transmitted to it by said court. The record discloses that within said time, and on May 5, 1939, the commission made and transmitted to that court an order from which we quote the following: “It Now Appearing, That the present Commission has read and considered all of the above transcript; and “It Further Appearing, That one of the members of the Commission, namely Alfred Merrit Smith, who was one of the Commission signing the original order granting Nevada-California Transportation Company, Inc., a certificate of public convenience and necessity, is now in Washington, D. C. on other state business; and, *315 “It Further Appearing, That Commissioner Smith has stated that he could not return to Nevada within the time provided by law for the Commission to return its report herein to the Court; and “It Now Appearing, That the two Commissioners present cannot come to an agreement whether they shall sustain, rescind, alter or amend the former order of said Commission. “It Is Ordered, That a copy of this order, together with the transcript of the evidence submitted to the Court, be transmitted forthwith to the Honorable Clark J. Guild, Judge of the First Judicial District Court of the State of Nevada, in and for the County of Ormsby, to there be dealt with as to said Judge shall be deemed meet.” On May 29, 1939, on motion of the attorney-general, the court again ordered the evidence transmitted to the commission. Petitioner made no objection, nor did it take any exception, to this action of the court, though its counsel was present when the order was made. On June 5, 1939, by reason of further absence on state business of one of the members of the commission, the court, on application of the commission, stayed all proceedings in the action and allowed the commission to and including June 19, 1939, within which to report its action to the court. The commission, as we have seen, made its report on June 13, 1939. The record does not show that petitioner was represented when the order of June 5 was made. However, that order was not thereafter complained of by petitioner otherwise than by its objection, taken at other stages of the proceedings, to the jurisdiction of the court to proceed at all under said section 6133. We are satisfied that the provision of subdivision (b) of section 6133 N. C. L. 1929, prescribing the period of time within which the commission shall report to the court is not mandatory, but only directory. It seems unreasonable to attribute to the legislature, under *316 such circumstances as were made to appear in the court below, an intent to nullify the action of the commission because its action and report, taken and made within the time allowed by the court, were not so taken and made within ten days after its first receipt of the copy of evidence. 59 C. J. 1078, 1079, sec. 634; 25 R. C. L. 766, 767, 769, secs. 14, 16. We think the court was authorized, under the circumstances, to stay proceedings beyond fifteen days from the original date of transmission, and that in doing so it acted reasonably, not arbitrarily. Petitioner contends that under the due process clause it was entitled to notice and hearing before the public service commission before that body could lawfully issue an order revoking its certificate, and that the commission gravely erred in not giving due notice and affording petitioner an opportunity to appear and be heard. But this court has decided that the action brought by plaintiffs in the district court was maintainable under the provisions of section 6133 N. C. L. 1929. In that action the petitioner, as one of the defendants, was duly served with process, appeared and participated in the trial. When the taking of evidence was completed, petitioner did not offer, and plaintiffs did not refuse, to stipulate that the trial court proceed to determine whether the order granting petitioner a certificate of convenience and necessity should be vacated. Under the express provisions of subdivision (b) of section 6133 N. C. L. 1929, the parties'could have stipulated that the trial court proceed to a judicial determination of the issues involved without transmitting the evidence to the commission. As petitioner did not offer, and the plaintiffs in said action did not refuse, so to stipulate, petitioner is in no position to urge want of due process. The court is not to be understood as holding that petitioner was or is without any remedy in seeking relief from the order of rescission. It is ordered and adjudged that the writ be denied. *317 August 24, 1940. James T. Boyd and Harley A. Harmon, for Petitioner. Gray Mashburn, Attorney - General, and W. T. Mathews and Alan Bible, Deputy Attorneys-General, for Respondents. Brown & Belford and Walter Rowson, Amici Curiae. January 3, 1941. 108 P.(2d) 850.