*1 Exp. Co., et v. Railroad & Public al. Hoover Motor Inc. et al.
Utilities Commission (Nashville, 1952.) Term, December
Opinion July 17, filed 1953. Rehearing Denied October (cid:127)594 *3 ,ancl both Harwood Jr., Chas. 0.
Judson Brown, Memphis, Glenn M. Nashville, H. Elliott, Chas. Jas. W. Nashville, Hudson, Jr., Wrape, Memphis, Exp. for Hoover Motor Inc. and others. City,
Cox, of Johnson for Epps, Miller & Weller, Transp. T. & N. Co. E. W. C.
Prank B. Creekmore C. both of John Baugh, Memphis, E. W. and John J. Knoxville, Jr., Hale, etc. Nashville, Robinson, Jack Hooker, C. *4 Justice Gailor delivered Court. Mr. petition controversy C. filed Jack This rises from Freight doing Lines, as Robinson business Robinson, Commission, & Public Utilities before Railroad necessity secure to license certificates of convenience and haulage public highways freight in Ten- over routes petition all car- resisted common nessee. already having nec- riers certificates convenience peti- specified essity, covering in Robinson’s routes Freight will herein Lines tion. refer to the Robinson We petition opposing as and to his those “Robinson,” Group.” hearing and the intro- a full “the Hoover After “the found that Commission evidence, duction promoted by necessity public will convenience proposed granted service,” the creation the 8 for certificates over routes. of Robinson Group petitions Thereupon Hoover filed carriers Chancery County, Court of Davidson for certiorari *5 n 598 heard,
and the writs the came on to he being case granted, before the Chancellor.
The first and principal was the effect of Chap- ter 261, Public Acts March effective which Code Section 9014 “In was amended to provide such making of fact findings Chancellor shall weigh the evidence and determine the facts -by preponder- ance of the proof.” Since before the proceeding Util- ities Commission had been held before the effective date Act, the effective date of Act was though prior to the in the hearing Court, the Chancellor held Chancery that the Act did and proceeded to consider apply, writ under the usual procedure common law writ of certiorari such was to prior proceeding regular the amendment of 1951. Robinson’s original before the Utilities Commission certificates sought convenience and over 8 routes. The necessity Chancellor found that there was no evidence to support whatever issuance certificates over of5 these but routes, that there was material, substantial evidence to support the issuance over the He, therefore, 3 routes. remaining concluded the action the Commission as to the not supported routes was and arbitrary but affirmed the issuance of the other 3 illegal, certificates. appeal perfected No from was action of the Chan- in annulling* cellor certificates over the 5 routes not and in supported by evidence, his action has regard final. become As the other 3 routes, Group Hoover perfected its to the Court of in appeal sub- Appeals, that Court held: That stance, (1) the amendment effect at being the time of hearing- Chancery Court, procedural being should have merely, guided disposition the Chancellor his That case; (2) there material substantial though evidence to sup- port finding as to the routes of the Commission “preponderated” controversy, strongly that the evidence public against finding con- of the Commission that promoted by issuing necessity cer- would be venience and (3) Modi- routes; tificates Robinson over those *6 in its the decree of the and cancelled Chancellor, fied granting entirety certifi- order of the Commission petition. to his cates and dismissed Robinson, petition in this Court, Robinson for certiorari has filed filing but on. denied, we memorandum, after which, developed that a constitutional rehear, to when it granted heard have writ, was we involved, disposition. argument for and the is so before us case repeatedly held, review As this Court has lim the writ of certiorari was Chancellor on before the provided by writ, common law to the review ited although now exists no common law writ strictness here that Code- and the writ was defined Tennessee, Greyhound Dunlap 178 8989. v. Dixie Lines, Section Cartage (2d) Co., Inc., v. 413; S. Tenn. 532, 160 Tenn. W. (2d) Hoover Motor 119; S. W. 414, 199 Pharr, (2d) Express Taylor, 88, 203 W. Co., Inc., v. Tenn. S. By a deter review limited to 8989, Section 366. Code tribunal, board, “inferior or officer whether the mination jurisdic exercising judicial functions has exceeded acting illegally”. or is conferred, tion petitioner has the “The next contention is that right that to he to have the writ of certiorari the end upon may heard or mer- have the matter retried * * * only to is that it is The answer its. lies as for the writ certiorari substitute where appeal possibly, instead of error, a writ of or, an operate give querela, the writ will to audita (Lur- upon petitioner a the merits.” new trial J.) Equalization, ton, Tomlinson v. Board of 1, 11, 12 414, 416, Tenn. S. 6 L. R. A. W. example, Savage City
In a number of cases, Co. v.
(2d)
Knoxville, 167 Tenn.
72 W.
Ander
1057;
S.
642,
City Memphis,
(2d)
son v.
72 S. W.
1059; McKee
Elections,
v. Board
board or or commission is has fraud .acted ulently, illegally”. or Reese, Richardson Tenn. v. 165 (2d) 57 W. 800. 661, 797, S. “ performed at ‘Certiorari’ common law the func- supervision pro- tion aid a of to review and ceeding’s by super- of inferior a and tribunals boards place taking appeal ior tribunal, of up bringing writ of but error, the entire record order to determination there an whether had been jurisdiction, of absence or or a excess failure to
601 requirements proceed of according to the essential City Knoxville, the law.” v. Conners 871. 428, 432, 870, S. W.
“Applicable this writ common-law excerpt:
“ the functions ‘It in mind that be borne must pro- validity simply to ascertain certiorari are ceedings justice, either on the court before invalidity, charge the essential of their because or on that observed, been have not of the law forms entertaining jurisdiction in the court of the want of inquire employed to The has been them. writ never judgment rendered where into the correctness jurisdiction, therefore com- and was the court had supervisory petent. held it has been Hence jurisdiction on a certiorari must be the court into the external valid- to an examination restricted proceedings It ity had the lower court. judgment as to its be exercised review cannot the law or on the facts either on correctness, intrinsic powers supervisory of the court the case. appellate jurisdic with its confounded not be should Matranga] [ex State rel. v. 251; 5 R.C.L., tion.’ Judge, R. A. 248.” 8 So. 1089, 42 La. Ann. L. 277, McMorrough Tenn. Hunt, 243, ex v. rel. State 192 S. W. 250-251,
By In re Power Cumberland its unanimous expressly held 249 S. W. Chapter Acts of 107, Public unconstitutional *8 appeal give right Legislature undertook to of which the & Public Com this Court from Railroad Utilities mission. Appeals, Chapter did the of Pub
If, supra, imposing lic Acts of is to be construed as on hearing appeal, the Chancellor a on a on or certiorari appeal, lien of such would render the Act construction unconstitutional for the reasons In stated supra. By re opinion, Cumberland Power Co., its Appeals perform Court of has undertaken to an adminis- legislative beyond trative or which com- function, is its petency. 1870,divides the Constitution II, art. of1,
Sec. independent depart- and distinct three into Grovernment one forbids exercise II, 2, of art. and Sec. ments, department. Definition of the another the function three de- function of each of the limitation exact That partments the Constitution. undertaken is not interpretation and matter of construction aas definition, highest function the Judi- is the Constitution, prevails any ciary construction over whose construction interpretation undertaken either of the Constitution Legislature or the Executive. principle wholly exclusively Amer- “This is original It America’s contribution to the ican. Beveiidge, of law.” “The Life of Mar- science John p. shall,” Ill, Yol. 142. Congress liberty give
“If remains at this court appellate jurisdiction, where the constitution has de jurisdiction original; orig clared their shall be jurisdiction inal where the constitution declared has appellate; jurisdiction, it shall be distribution of made in the constitution, is form without substance.” Marbury v. Madison, Ed. Cranch, U. S., L. Cooley, 60, Constitutional Limitations, Vol. Chapter 8th ed., 7, et aliunde. frequently adoption
This Court has declared its principle expounded Marbury supra, Madison, v.
603 interpretation that of the Constitu- lias declared its State controlling. tion is ,and glory our written
“But it is the
the boast of
powers
are
that the
the law-makers
constitution,
legitimate
and
while it
defined;
restricted
and
is
province
Supreme
and lawful
of the
Judicial Tri-
validity
bunal of the Union to determine the
of a stat-
ute assumed to have been enacted under the au-
thority
organic
preroga-
of the
it
no
law,
is
less the
interpret
tive
the State tribunal to
its own State
pronounce upon
compatibility
and to
laws,
their
with
supreme organic
law.”
State,
Lonas v.
50 Tenn.
Randolph,
301-302.
287,
Lessee
6
Huntsman’s
v.
Tenn. 263, 271;
Allen,
Nelson v.
This
has
held
Pub
&
the Railroad
In
lic
is not a
re Cumberland
Court,
Utilities Commission
performs
supra,
Power
that it
administrative and
legislative
Nashville, & St. RR.
C.
L.
v. Brown
functions,
ing,
any
(2d)
different
140 S.
and
W.
Legislature
which
construction
of statutes under
operates,
&
Railroad
Public Utilities Commission
nullity
would
since the
void,
construction
Sec-
exclusively
tions
and 2
II,
art.
Constitution is
judicial
Negroes
function.
Dabbs, 14 Tenn.
Fisher’s
v.
119; Governor v.
Porter,
167-168;
Tenn. 165,
Arrington
v. Cotton, 60 Tenn.
State,
Erwin v.
319;
71, 96,
“Prom the the broad is (cid:127)general purpose acts is to confer upon the Railroad and Public Utilities Commission powers and primarily legislative functions which are power that the hear and deter executive, quasi-judicial power,
mine controversies, merely proposition incidental thereto. that the Legislature attempted intended or to create a court by the acts above referred to and to vest it with the power interpret rules, to make and execute can them, *10 'successfully not be maintained. Railroad and Public Utilities Commission is authorized to initiate prosecute proceedings and own its before itself; proceedings such are heard, decided, and its determination therein to be is authorized enforced exercising itself. A commingled legis tribunal such judicial lative, very executive, from functions, its nature cannot be made a court.” In Cumberland re supra, Power page at 515, S. W. page at 821. prior legisla without 9008-9018,
Code Sections part were enacted a sanction, tive as of the Code of 1932. language apply shows, So far their these sections both procedure petitions to the under for the common law writ statutoiy Code certiorari, Sec. and the writ of Chapter Code Sec. 8990. certiorari, Public Acts of undertaking amends Code Sec. without to dis tinguish may procedure the effect it have on the under statutory the common writ, law from that under the writ. present For the controversy determination of only necessary decision of this case, it is for tous deter procedure mine the effect the amendment had on under the common law writ of certiorari. As we have stated the common bring up law above, writ does not for deter .any question except mination, whether the (1) inferior board or tribunal jurisdic has exceeded its (2) illegally, tion, or has arbitrarily acted or fraudu lently. The amendatory effect of the Act was, therefore, require to review Chancellor and to the Commission, before introduced had been which preponderance whether evidence, determine jurisdiction, beyond ar acted its had' the Commission illegally. fraudulently bitrarily, Since this appropriate judicial long review limit of established amendatory Act of 1951 writ, under the common law procedure greater no further or effect on could have may law be the under the common whatever effect writ, proceeding statutory of the amendment on under the Code writ, Sec. present
In the case, the decision whether certifi necessity cates of convenience and shall be issued for the highways hauling freight by use of State a motor clearly govern carrier, is an administrative function of regulation ment. Control and of certain motor carriers were vested the Railroad and Public Utilities Com Chapter mission the Motor Act, Carriers Public *11 Supplement, By Acts Code 1933, 5501.1-5501.23. given
Act, Utilities Commission is the same control over certain motor carriers as it had had theretofore over “corporations so-called or “utilities” affected with a public expressly provides, interest.” The Act so Code Supplement, Secs. That 5501.15-5501.16. control is ex clusive and & final. McCollum v. Southern Bell T. T. Co., 163 277, (2d) 280, 43 S. W. 390. The action of the giving Commission in withholding or certificates of con necessity venience and is an administrative function no different from the action of the Commission in the rate- making power Judge of which speaking Cook, for a unan imous Court, said: “The directly courts indirectly cannot exercise * * power rate-making *.” Lewis v. Nashville Co.,
Gas (2d) 268, 40 283, S. W. 409, 414.
606 * ‘
‘ * *‘ legislative nor the execu neither That judi constitutionally assign to the can tive branches judicial, properly any hut are cial duties such as ’ ” judicial performed in manner. Muskrat v. to be S, 55 Ed. 250, 252, 31 S., 219 U. Ct. L. 348, U. S. 346, Hayburn’s 2 1 Ed. Case, 409, L. Dall., U. 246, 248; S., 436. ques
Under the common law writ of certiorari, of law will be The tions reviewed Courts. by George Law of 59, Certiorari Sec. Sec. Harris, E. 48, p. Sec. Am. 82; Jur., Public Administrative 622, Law, sup- Sec. 210. An order the Commission which is ported by any arbitrary there- void, is judicial power quash fore, within under the common law writ certiorari. 42 Am. Jur., Public Administra- p. tive Law, 150, Sec. whether there 496. is any support finding material evidence to and order of the Commission a matter of law for the is, therefore, upon Court review, and to ascertain whether there that, any is purpose material is evidence, the limited for which the evidence introduced before the Commission admis is sible in granting the Court the writ of common law cer tiorari. supra; Harris, Certiorari, Alton R. S., Co. v. U. 315 U. 15, S. Morgan, Ct. S. 86 L. Ed. U. S. v. 586; 313 U. S. 409, 61 S. Ct. 85 L. 1429; Ed. Interstate Commerce Commission v. N. Louisville & R.
U. S. S. Ct. 185, 57 L. Ed. provided
Under Code Sec. that addi may granting introduced tional evidence hearing but on the certiorari, on the writ the common *12 question pre is limited writ, law evidence to the namely, whether the Board sented, or Commission has jurisdiction or illegally its acted fraudulently, exceeded arbitrarily. or
607 provision, be if the for the “Under this averments of il- writ of its certiorari, common-law authority by usurpation legal the com- action or may supported or refuted be board mission granted and if the evidence; additional writ statutory appeal, hearing de in lieu is writ, party support and either novo, is free to his conten- presented.” bearing tions evidence on the issues Memphis, City v. Anderson 167 Tenn. 72 653, 648, (2d) S. W. 1060. 1059, creating
Since the Tennessee the Public statutes Utilities Commission were modeled on the Federal stat particularly persuasive utes, Federal decisions are resolving questions arising under those statutes. Oman Ry. v. App. Tennessee Co., Cent. Cleveland 141; C., &C. St. L. R. Southern v. Coal & Coke Co. 433, 441, S. W. 297. weight given particular
The to he ais peculiarly matter province within the trier of the unhampered facts, governing mechanical rules weight or effect of evidence. Am. Jur., Public Admin p. istrative Law, Sec. 132, 467.
" weight beyond of the evidence is To consider J.) Papermak (Brandeis, province.” Western our Co. v. Chemical U. S. U. ers S. America, Ed. 70 L. 46 Ct. S. Appeals judgment is the Court reversed,
The explanation, foregoing with the the decree of the Chan- respondents. is affirmed the cost of the cellor at dissents. Justice, TomliNsoN, (dissenting). Justice
TomliNsoN, opinion majority reaching far so in its conse- quences disrespect upon my that it think, be would, I part scholarly and to the extensive learn-
608 concurring my therein experience Associates of ing and compel me to which the reasons record fail to I should dissent. a reluctant given upon any, if to be effect, the whole ease turns
The amending Code Chapter of Public Acts 261 of the prior enact to the stood that section As Section 9014. in directed, the Chancellor Act, of the ment findings to reviewing board, an administrative of fact the * # * writing make findings fact to of his “reduce proposes parts Act to record.” the them of provide provision 9014 as to of Section so amend this findings making shall of fact the Chancellor such “In pre by weigh the facts the the and determine proof.” ponderance of the findings fact to the enactment of the 1951 Act the
Prior not were of the Railroad and Public Utilities Commission reviewing the orders of the Com- disturbed Courts supported by findings any if fact sub- mission, such were Throughout hearing evidence. the of this case stantial Appeals, Chancery in the Court, and the Court petition granting until the this after of the Court, to it all rehear, seems to have been the lawyers, all members Chancellor, Appeals and all that the effect members this Court change procedure of the 1951 Act is to so as to re- quire proceeding when Chancellor, under Sections 9008-9018 Code, whether to the fact determine findings of the Railroad and Public Utilities Commission supported, are evidence, substantial as thereto- by preponderance but fore, of the evidence. This fact is mentioned because such heretofore unanimous supports strongly thought construction of the Act that such must be It natural should its construction.
(cid:127)609 give Act declined effect Chancellor added after this suit was started. because it was enacted considering merits However, majority has been concluded rehear, expressed majority opinion, in the that the Court, and so proper require Act is to construction *14 reviewing Court, fact Public conclusions Utili- preponderance by ties “to determine a Commission beyond the evidence, whether the Commission had acted jurisdiction, arbitrarily, fraudulently illegally.” its or according majority opinion, That is, to the the 1951 Act requires reviewing a Court, fact conclusion of the prepond- by Public Utilities Commission, to determine erance the evidence whether such fact conclusion is supported by any substantial Such a evidence. construc- as I see of the tion, 1951 Act is to reduce it to an ab- it, surdity proposes require in that it to the Court do to impossible. that which is
Testing immediately by that above said the fact issue in this case, the statute directs and Public Railroad Utilities Commission to determine the evidence” “from (emphasis supplied) public whether the convenience necessity promoted by will be the issuance of the certifi- public cate necessity convenience for which Robin- applied. 5501.5(a). son has Code Section Several wit- public nesses necessity testified that convenience and promoted. would testimony Now, this is substantial evidence of that many fact, no matter how witnesses testify contrary. to the impossible It is, therefore, for preponderance Court to determine of the evi- dence that there is no substantial There evidence. is regardless substantial great pre- evidence, howof ponderance contrary to the is.
n 610 .
n my of the conviction rid mind able am Thus, I Act that is proper of the construction that proceedings Sections under requires the Chancellor con- the fact determine whether Code of the. 9008-9018 sup- or commission hoard an administrative clusion I preponderance evidence. think ported Legislature intended. is what opinion says majority the construction But the “ for just the Act unconstitutional render would stated opinion In re in the Cumberland stated reasons supra’’,147 in that 249 W. S. Power perform requires an ad “to the Court construction such beyond legislative function, which is its ministrative authority competency.” last statement As " opinion says quotations, majority Art. II, Sec. departments (of one three the e'xercise forbids State) department.” of the function of another requires holding majority
This consid- *15 questions, (A). of does the eration to wit: What three supra, Company, In case of re Cumberland Power decide? purports (B). the the What is function which 1951 Act require (O). of to the Court? Does of Article Section depart- “forbid(s) by (of II one the three exercise State) department”, ments the function of another majority opinion? in stated - (A). Company, In the ease of In re Cumberland Power supra, provided appeal directly the statute to our Supreme Court from the orders the Railroad and Public Utilities Commission. This Court held that act appeals may unconstitutional, because come to Su- preme Court from or a orders decrees of court. The Railroad and Public Utilities a Commission is not Court. It body. an is administrative Hence the under- statute taking appeal directly an to allow from the order body held unconstitu- to this Court .administrative tional. question decided see, able to am
In so far as I supra, Company is relevant case, Cumberland Power question a which we are here concerned. As with to the functioning- every commission board or fact, matter of are State whose orders reviewed under the laws proceeding Chancery under or when Court Circuit 9008-9018 an administrative board or Code Sections is whether
commission. is such administra- performing tive board commission its duties powers stage proceedings any did at exercise judicial reaching sought function conclusion to reviewing reviewed. If so, Court the commission’s judicial exercising exercise of such function likewise judicial Lockhart, function. Bouldin v. Tenn. 262, (B). purports What is the function which the 1951 Act require of the Court? it an Is administrative function! provides Section 9014 that the Chancellor shall hear the proof” case “on the before Commission “such ’’ party may other evidence as either desire to introduce findings and “shall reduce his of fact and conclusions of ’ ’ writing law parts and make them of the record. Then at comes the 1951 providing amendment th the Chancel weigh lor shall evidence and determine the facts preponderance proof.” the func So is that required tion the Chancellor or Court Circuit reviewing 1951 Act is that in a Board’s or Commission’s conclusion of fact the Chancellor or the Circuit *16 weigh shall question the “by evidence and determine the preponderance the proof.” judicial that a non Is function? questions determining fact
Weighing and evidence always been preponderance heretofore thereof has by the Judge judicial The regarded function. Circuit aas many every non-jury others, which he case hears, by him on oral in the heard the cases Chancellor daily. depositions by that function exercises evidence or suggested, that in so far as I am aware, It has never been judicial in nature. a function not exercise of such majority inYet, holds, the able so effect, —neces- sarily. go apply question
To further and 1951Act to the fact before the Railroad in this and Utilities Commission required we case, find to deter- that this Commission is public mine “from the conven- evidence” whether the promoted by will ience be certificate the issuance of the merely applied. for which Robinson has The Act requires prepond- the Chancellor decide whether the erance supports con- the Commission’s clusion “from the evidence” should certificate be by issued. This seems to me to be exercise judicial Chancellor of a function. grant argued Robinson that the in behalf of
It is destroys law the common the Courts review such law secured This common writ is writ certiorari. our While Article VI of Constitution. 10 of Section away by' taken from the it cannot be relief afforded people, being guaranteed Constitution, may quantity quality increased, since of relief prevent Legislature from Constitution does McKinney, scope Duggan broadening of the writ. v. providing legislature, 22-23. reviewing a an adminis- the Court in fact conclusion of question pre- by the trative determine the board shall ponderance of the evidence rather than
613 supported by conclusion ma- of whether the Board’s is broaden, scope merely to terial of the evidence, is proceedings under 9008-9018 writ Sections of the Code. my judgment, say mistake, It is a to that the 1951 Act, it, construed as construe converts the into I Court making body. provides a If rate the statute Railroad and Public Utilities Commission shall deter- charged mine “from the evidence” what rate shall be given experts upon testify for a service, rate question exercising making of fact, Court not a rate considering experts function in the evidence of these purpose determining preponderance of where the the evidence The is. Circuit Court or the Chancellor may testimony experts review the in the field of sci- professional ence, pur- or other medicine, field for the pose ascertaining preponderance where the of the evi- dence is, has done so from time immemorial. For identically the same necessarily it seems to me reason, follow that the merely exercising judicial Court is func- tion in reviewing experts testimony making in rate purpose for the of ascertaining preponderance where of the evidence is. I to cite Tomlinson v. Board mistake, think,
It ais Equalization, S. W. L. R. A. support proposition cases, and that line of purpose may weigh for the evidence the Court preponderance determining In where is. the Tomlin- tax board authorized son case the was assess make upon opinion, real rather ments of estate based its own testimony than an on formed from of witnesses. Of course, such situation the would be sub stituting opinion for that Tax its Board were permitted judicial to review an order. such No function weighed. was exercised because no evidence requires provision. merely It no such Act makes proof” introduced “on.the determine 'Chancellor to upon addi- such board, administrative before may presented proof to the as to he Chancellor tional upon preponderance evidence lies where the upon the board or of fact decided commission. *18 calling
(C).
majority opinion, after
attention to
government
three
the fact that our state
is divided into
independent departments,
then
that “Sec.
of2,
states
by
an
Art.
forbids the exercise
one of the function of
II,
department.”
provision
other
This
of the Constitution
provision
so
as
neither
absolute
that.
Its
is that
department
power properly belonging
shall
exercise
to
“except
either
others,
of the
in
cases herein
the
directed
permitted’’, (emphasis
meaning, except
supplied)
or
in
permitted by
provisions
cases directed or
of
other
our
Constitution.
Young,
Richardson v.
Article VI, provides Section 8 of our Constitution that Chancery, “Jurisdiction of the Circuit, and other in ferior courts, shall be as now established law, until changed Legislature.” Jackson v. Nimmo, 71 Tenn. 597, construing this clause of the Constitu tion, said “change that a jurisdiction, enlarge that is, ment or sphere diminution of (ir) (of of action snch Courts) left, to he Chancery inferior other Circuit, ’ legislature by, ’. made to be authorized and was Chapter of Public Acts provide, To Chancery Act) (as hereafter construe I does, preponderance with act accordance Courts must any reviewing ad- a fact conclusion proceeding when under commission ministrative board or only provided” is 9008-9018“unless otherwise Sections ‘‘ provide (Chancery ’) enlargement an to their Courts —of sphere proceedings un- what were the action” under always der the common law which has writ as to a matter proper been considered a courts, wit, function of to weighing function of trial the evidence introduced appears necessary To con- me, lawsuits. then, legislature clude that in the enactment of the 1951 Act the permits by did that which the Ar- Constitution its ticle VI, Section 8. say I do not think that
Perhaps not amiss it is Supreme re- United States the statements *19 opinion any majority are of assistance into .the ferred whether statute violates is State our because we provisions course, Of our State Constitution. the language of our of our statute and Con- must look to question. deciding that in stitution opinion think the For the reasons I stated, Appeals affirmed. should have been ON Two TO R.EHEAR. MEMORANDUM PETITIONS Justice. Gailor, group petition
The Hoover
filed .a
has
to rehear criti-
cising
July
of this Court filed on
17, 1953,
pretermitted
specific finding
in
because
it we
that the
necessity granted
certificate of
and
Robinson
convenience
by
not
Utilities Commission was
the Railroad
Public
&
supported by any
material and substantial evidence.
entirely
subject
rehearing
for
matter of this
is
scope
proper
pleading
within
it is
and
of that
permitted by
our Rule
It number of the 25 is by support petition, nesses introduced Robinson of his (Pet. testified there “that is need additional service” p. 15) testimony that the of all of nul these witnesses was Having lified their cross-examination. testified necessary, the additional service was convenient merely cross-examination of these witnesses affected weight credibility testimony, and was for the final and exclusive determination of the Commissioners as triers of the facts. “necessity” are
“Convenience” relative guide no the statute fixes norm to terms and Commis degree determining adequacy public sion which trucking being shall an Furthermore, service attain. board and not a administrative Com Court, Utilities been mission has never held this Court to be restricted by law technical common rules deter mining purely questions, administrative and we held have grant public high that the of a refusal license to use ways purely question. in commerce an administrative Chapter
Section 162 of the Public of Acts which hearing force at the time of this before recognizes crystal- Commission, this rule of law and (42 lizes it statute Jur., Am. Public Administrative p. seq.; Law, Sec. et Stason Cases and Other p. Materials on seq.; Administrative Tribunals, 400, et *20 1000). 124 A. L. R., opinion,
In his specifically the Chancellor found that there was such material and substantial evidence to support grant three certificates the Com- of tlie th.e Appeals agreed with the Court of mission. The Chancel- but material, evidence, was substantial lor that there such preponderance of not the decided that was evidence. peti- petition rehearing quoted In for above, as agrees tioner that there was on direct such examination, material, evidence, substantial but insists that cross- application examination and the of the strict common law of evidence, rules such evidence he and dis- should elided regarded. agree For the reasons we stated, above do not ,and with this conclusion. find hold that Robinson’s We testimony, supported part, by own as it testi- mony of his was material and substantial witnesses, upon justified which the Commission was is- suing the necessity certificates of convenience and in this petition case. The rehearing for filed the Hoover group accordingly, is, denied. Transportation
On behalf of T.E. & W. N. C. Company, lengthy re-argument with a wealth of author ity, been disagreement has filed, which with the conclu sions reached in July our out 1953, is set length at proper detail. This document inis no petition sense, rehearing. of a to rehear is to call
“The office the court to overlooked, matters attention supposes things which im the counsel were those properly full decided after consideration.” Louisville Fidelity
& N. Railroad v. United & States Guar anty 658, 691, 148 S. W. every directly
“As
member
came
from
bar to the
we
for-
have not.so far
bench,
gotten
feelings
lawyers,
sympathize
our
as
not to
counsel,
fully, with the zeal and
earnestness
lawyer
every
remember that a true
will use
honor-
*21
pains,
spare
labor or
behalf
no
exertion,
able
respect
Bnt while
we would
so,
client.
this is
of his
fully suggest
that after a
bar,
to the members of the
pro
opinion
and an
considered,
cause has been once
judg
regarded
the deliberate
nounced,
is to
ment of the entire
and we should not be called
Court,
upon
clearly
can
show
to reconsider
unless counsel
it,
oversight
bring
omission,
some
or
to the notice
important,
really
of the Court
new matter,
some
”
which was not before considered. Andrews v. Cren
shaw,
All the authorities discussed were ar- this gued by hearing, counsel at the or cited in filed briefs argument, carefully weighed by before and after the prior the Court to a final decision of case. That our final only decision thorough was reached after and care- study many questions ful of the presented, close is evi- long history denced from the of the case in this Court. filing We first denied lengthy certiorari, memorandum, stating our reasons for that course. when Thereafter, petition to rehear our denial of the writ filed, was certain members of Chapter the Court decided that Public Acts of 1951, Code, given 'Section 9014, had been an un- constitutional Appeals. construction the Court of Ac- cordingly, granted we argument the writ, heard elaborate permitted filing of additional briefs. After full consideration and conference of all members of the Court, opinion July many 17, 1953, was announced. The interesting questions presented always will but be close, they must be decided. doubt, because use of In
No re Cumberland 249 S. Co., in our 818,W. former Power opinion, counsel insists this case was overruled, or opinion at weakened least this Court in Ken- Dunlap, Light tucky-Tennessee & Power v.Co. In re Cumber conclusion. an erroneous but this supra, in the mentioned
land Power Dunlap, Light Kentucky-Tennessee Power Co. v. & questions supra, decided and the hearing illegality before (1) were: that case (2) The Commission; Public & Utilities Railroad Chancery jurisdiction Court of Davidson lack of *22 legitimate questions County. are within the Both these scope certiorari, law writ common of review under the granted the bill or made and which was the writ County. Chancery filed Court of Davidson opinions validity We hold that the force and supra; Court re Cumberland Power Lewis In Co., Heating Co., v. Nashville & 268, Gas S. W. (2d) and McCollum v. & T. 409, Bell T. Southern (2d) 43 S. were not weakened or W. 277, 390, by any subsequent opinion modified of the Court. holding July
We re-affirm our
1953,
17,
that an order of the Railroad & Public Utilities Commis
granting
refusing
sion
a certificate of convenience and
necessity,
is reviewable
the Courts
under the
commonlaw writ of certiorari,
8989;
Code Sec.
that Code
apply
Secs.
proceedings
peti
9008-9018,
alike to
under
tions for the common law writ, Code Sec.
and the
statutory
Chapter
writ, Code Sec.
8990;
Public
amending
Acts of
applies
Code
Sec. alike to
common law
statutory
writs and
and that said
writs,
Chapter may
given
a constitutional construction. Wil
son
State,
v.
143 Tenn. 55, 224 S.
168; W.
Turner v.
Eslick,
We further hold applied as the statute was Appeals, given an Act was unconstitutional
construction. judgment petitions former
Our affirmed, and both rehearing are denied.