Hoover Motor Exp. Co. v. Railroad & Public Utilities Commission

MEMORANDUM ON Two PETITIONS TO R.EHEAR.

Gailor, Justice.

The Hoover group has filed .a petition to rehear criti-cising the opinion of this Court filed on July 17, 1953, because in it we pretermitted a specific finding that the certificate of convenience and necessity granted Robinson by the Railroad & Public Utilities Commission was not supported by any material and substantial evidence. The subject matter of this petition for rehearing is entirely proper and within the scope of that pleading as it is permitted by our Rule 32, 185 Tenn. 879.

It is argued that although a number of the 25 witnesses introduced by Robinson in support of his petition, testified “that there is need for additional service” (Pet. p. 15) that the testimony of all of these witnesses was nullified by their cross-examination. Having testified that the additional service was convenient and necessary, the cross-examination of these witnesses merely affected the weight and credibility of the testimony, and was for the final and exclusive determination of the Commissioners as triers of the facts.

“Convenience” and “necessity” are relative terms and the statute fixes no norm to guide the Commission in determining the degree of adequacy which public trucking service shall attain. Furthermore, being an administrative board and not a Court, the Utilities Commission has never been held by this Court to be restricted by the technical common law rules of evidence in determining purely administrative questions, and we have held that the grant or refusal of a license to use public highways in commerce is purely an administrative question.

Section 10 of Chapter 162 of the Public Acts of 1953, which was not in force at the time of this hearing before the Commission, recognizes this rule of law and crystallizes it by statute (42 Am. Jur., Public Administrative Law, Sec. 129, p. 460, et seq.; Stason Cases and Other Materials on Administrative Tribunals, p. 400, et seq.; 124 A. L. R., 1000).

In his opinion, the Chancellor specifically found that there was such material and substantial evidence to support th.e grant of tlie three certificates by the Commission. The Court of Appeals agreed with the Chancellor that there was such material, substantial evidence, but decided that it was not the preponderance of the evidence. In the petition for rehearing as quoted above, the petitioner agrees that there was on direct examination, such material, substantial evidence, but insists that by cross-examination and the application of the strict common law rules of evidence, such evidence should he elided and disregarded. For the reasons above stated, we do not agree with this conclusion. We find ,and hold that Robinson’s own testimony, supported as it was in part, by the testimony of his 25 witnesses, was material and substantial evidence upon which the Commission was justified in issuing the certificates of convenience and necessity in this case. The petition for rehearing filed by the Hoover group is, accordingly, denied.

On behalf of E. T. & W. N. C. Transportation Company, a lengthy re-argument with a wealth of authority, has been filed, in which disagreement with the conclusions reached in our opinion of July 17, 1953, is set out at length and in detail. This document is in no proper sense, a petition for rehearing.

“The office of a petition to rehear is to call the attention of the court to matters overlooked, not to those things which the counsel supposes were improperly decided after full consideration.” Louisville & N. Railroad v. United States Fidelity & Guaranty Co., 125 Tenn. 658, 691, 148 S. W. 671, 680.

“As every member of this Court came directly from the bar to the bench, we have not.so far forgotten our feelings as lawyers, as not to sympathize fully, with the zeal and earnestness of counsel, and to remember that a true lawyer will use every honorable exertion, and spare no labor or pains, in behalf of his client. Bnt while this is so, we would respectfully suggest to the members of the bar, that after a cause has been once considered, and an opinion pronounced, it is to be regarded as the deliberate judgment of the entire Court, and we should not be called upon to reconsider it, unless counsel can clearly show some oversight or omission, or bring to the notice of the Court some new matter, really important, which was not before considered. ” Andrews v. Crenshaw, 51 Tenn. 151, 152.

All the authorities discussed in this petition were argued by counsel at the hearing, or cited in briefs filed before and after the argument, and carefully weighed by the Court prior to a final decision of this case. That our final decision was reached only after a thorough and careful study of the many close questions presented, is evidenced from the long history of the case in this Court. We first denied certiorari, filing a lengthy memorandum, stating our reasons for that course. Thereafter, when petition to rehear our denial of the writ was filed, certain members of the Court decided that Chapter 261, Public Acts of 1951, Code, 'Section 9014, had been given an unconstitutional construction by the Court of Appeals. Accordingly, we granted the writ, heard elaborate argument and permitted the filing of additional briefs. After full consideration and conference of all members of the Court, the opinion of July 17, 1953, was announced. The many interesting questions presented will always be close, but they must be decided.

No doubt, because of the use of In re Cumberland Power Co., 147 Tenn. 504, 249 S. W. 818, in our former opinion, counsel insists that this case was overruled, or at least weakened by the opinion of this Court in Kentucky-Tennessee Light & Power Co. v. Dunlap, 181 Tenn. 105, but this is an erroneous conclusion. In re Cumberland Power Co., supra, was not mentioned in the opinion of Kentucky-Tennessee Light & Power Co. v. Dunlap, supra, and the only questions decided by the Court in that case were: (1) The illegality of the hearing before the Railroad & Public Utilities Commission; (2) The lack of jurisdiction of the Chancery Court of Davidson County. Both these questions are within the legitimate scope of review under the common law writ of certiorari, which was the writ made and granted by the bill or petition filed in the Chancery Court of Davidson County. We hold that the force and validity of the opinions of this Court in In re Cumberland Power Co., supra; Lewis v. Nashville Gas & Heating Co., 162 Tenn. 268, 40 S. W. (2d) 409, and McCollum v. Southern Bell T. & T. Co., 163 Tenn. 277, 43 S. W. (2d) 390, were not weakened or modified by any subsequent opinion of the Court.

We re-affirm our holding of July 17, 1953, that an order of the Railroad & Public Utilities Commission granting or refusing a certificate of convenience and necessity, is reviewable by the Courts only under the common law writ of certiorari, Code Sec. 8989; that Code Secs. 9008-9018, apply alike to proceedings under petitions for the common law writ, Code Sec. 8989, and the statutory writ, Code Sec. 8990; that Chapter 261, Public Acts of 1951, amending Code Sec. 9014, applies alike to common law writs and statutory writs, and that said Chapter may be given a constitutional construction. Wilson v. State, 143 Tenn. 55, 224 S. W. 168; Turner v. Eslick, 146 Tenn. 236, 240 S. W. 786; Jones v. Coal Creek Mining & Mfg. Co., 133 Tenn. 159, 180 S. W. 179.

We further hold that as the statute was applied by the Court of Appeals, the Act was given an unconstitutional construction.

Our former judgment is affirmed, and both petitions for rehearing are denied.