*1 TRANSPORTS, et al. ROBERTSON TEXAS et al. CO.
TRANSPORT OF Texas. Court Civil Austin. 2, 1954. Rehearing Denied June Shepperd, Atty. Ben Gen. and John Capp, Sp. Atty. Gen.,
Dean Asst. for J. Railroad Commission. Walker, Austin, Albert G. Harry W. Patterson, Searcy Bracewell, & Bracewell Tunks, Houston, Transports, for Robertson Inc. Looney, Littleton,
Kelley, McLean & Kelley, Rogers Littleton, Edin- Jackson burg, appellee Motor Carrier. Caven, Hatched, Austin, Walter L. Austin Hutcheson, Hutcheson, Talliaferro & Hous- ton, Dallas, Baker, Botts, Suggs, T. An- J. Parish, Houston, McLeod, Wigley, & drews Galveston, Shirley, Penland, Mills & G. H. Dallas, Dallas, Dyer, Allen, Adair Gambill Gambill, Worth, Barwise, & Fort Seth Worth, ¡McCalla, Austin, Fort Kenneth counsel, appellee Railroad. ARCHER, Chief Justice. appeal is an from a
This County District of Travis 98th declaring null and cancelling and void an Railroad 19, 1952, pursuant Texas application of *2 473 re 1953, held on Transports, 14, then December Appellant, judgment in special- entry sulted the herein of the holding carrier specialized motor a 6950, complained 21, of on December certificate carrier ized motor is in- of which amendment the T.R.C.P., 296, in Pursuant to Rule and filed appeal. This in this volved compliance therewith, appellants requested 1952, 18, amend application on the to make fact con- Court and the trans- as to authorize so its certificate complied clusions of The law. Court with liquid chemicals portation of request, appellants this in accordance in bulk tank in products and chemical 298, T.R.C.P., requested with Rule ad- points in to, and between from trucks findings, ditional or amended which were cer- this to amendment Prior Texas. overruled in toto. prescribed tificate, therein the transportation to the subject confined had been matter case been of'this the without Supreme enumerated certain before this Court Court generally. transport chemicals authority to reported whose decision in 261 S.W.2d hearing, Railroad 549, supra, After notice and this certificate was before of Au- promulgated its order Court; Supreme this Court 1952, authority to trans- 19, Thompson 150 gust Commission, Railroad v. and chemi- chemicals, liquid chemicals port 307, 759, or- Tex. S.W.2d held tl^at products with in accordance cal did not contain suf- der plication. satisfy statutory ficient quirement. Texas, Transport Company of Appellees, York, Transport Com- York R. P. appeal is before us on sixteen d/b/a Railroads group of Texas pany, Inc. assigned as error in the trial the case Texas, who were intrastate operating supported by are: that the order was court, permitted to intervene evidence; and substantial set out in detail restraining order seeking á suit brought inadequacies of the services and fa- injunction permanent temporary and a cilities carriers and the of the Commis- enforcement restraining the public need; holding the services order, declaring judgment such sion’s very appellee acceptable; had been (The and void. Railroads order invalid one; proper was a plea permanent their later abandoned legally consider informa- Commission could injunction.) previous hearings obtained files; by its order reflected 'official that the granted an without trial court 1951, 18, July adjudicata res dated 11, 1952, restraining on November notice preclude the Commission from so as to the Commission’s order enforcement of order; granting the operations thereunder, and there issuing correct in temporary on hearing was held after a compliance 1952, (d), 5a 19, with Section 1952, 29, resulting on injunction November 911b, finding and in Article injunction entry temporary rendering adequate trans- carriers were order, 4, This December service; improper portation that was appealed by temporary injunction was arising as to conditions evidence consider appellants and was dissolved these same order; subsequent to date in Robertson this Court sup- was introduced in evidence Transport Company of Tex.Civ. order and was in com- port App. Austin 256 S.W.2d error 911b, pliance Article with Section Supreme granted. Thereafter compliance 14(b), with Sections 13a and of this Court and reversed 911b. Article temporary injunction. Trans reinstated Appellees contend that the did port Company of Texas v. Robertson comply 5a(c), Tex.Sup.1953, Article Transports, Inc., 261 S.W.2d not with V.A.C.S., sufficiently give the jury Commis- on the merits without 549. Trial - of'-it, existing transportation the order jurisdiction sión 'companies supported' serving territory, substantial evidence *3 point full and shall inadequacy did not set forth out the ex- , isting transportation in detail the pointing out facilities or ser- vice, and facilities specify and shall addi- of the service wherein and the need tional required- carriers facilities of the or service are service, and that proposed secured are res previous application.” the Commission of said orders of proper applica- adjudicata the matters application The long and we shall em- acted, tion as of the date body only may portions herein as be- required to not make the trial court is essential sufficiency to a determination of no evidence matters on which to meet the statute. to have presumed was and-is offered incompetent or considered inadmissible Applicant, appellant, to amend proposed grants evidence, finally, that the order Specialized Motor Carrier Certificate to- sought ap- authority more Authorize, services, in addition to plication. specific naming chemicals, additional serv- ices, naming products liquid, chemical V.A.C.S., 5a(c) of Art. between, chemicals, in bulk in tank trucks as follow!: points all that such commodities- require special shall have no “The Commission the use of consider, equipment. set hear- jurisdiction hear, application ing, or determine The names and addresses of a number of certificate of convenience and for a carriers operating in proposed terri- operation as necessity authorizing the given. tories were carrier’ or ‘specialized motor except pro- common as other applicant The sets out list of commod- preceding paragraph un- in the vided ities it is transport authorized to and seeks application writing shall be less the chemicals, chem- following in detail the products ical chemicals. facts: The assertion is made application in the contain the name and It shall “1. that common carrier motor oper- carriers applicant, who shall be address ating in the territory do not en- interest, party and the námes real at gage type proposed; services officers, any, if of its and addresses the services of the railroads inadequate, concerning give full information shall undependable too slow and to meet the need physical condition and financial and convenience public; two applicant. properties of the carriers are authorized to chem- icals, products chemical chem- The or “2. commodities now, icals in bulk but that their services and or or class classes commodities inadequate because of a lack applicant proposes which to trans- equipment, there is a definite specific territory port points for additional need services. from, to, ap- or between which the operate, plicant together desires to with applicant states that will description of each vehicle which prompt render service and that in a former applicant intends to use. hearing in granted which was present authority, it offered sufficient evidence to accompanied shall “3. It have authorized the of the author- territory map, showing the within proposed. ity which, to or from or be- which,- applicant accepted desires tween the Com- operate, issued, and shall contain any- mission, a list notices hearing had- in determina- Texas part, and York appellees authorizing took requested was them transport specifically named chem- tion made icals, as well prod- as granted. liquid chemicals, ucts and which were then deciding, Assuming, hut in effect. the stat- requirements plication met the question ute, will consider recited that there was much we arising interpretation confusion whether Commission’s by substantial 19, 1952, established Robertson certificate as to whether he is *4 District the transport chemicals, the evidence and and sets .trial sub- supported by reasonably chemicals, out .the names of Court was various and that new stantial evidence. named and that a traffic man interpret would not be able to provides 911b of Article 5a(d) the certificate. grant an shall the that before etc., applica- hear, findings .such Other are that of the use the application it shall etc., Transport Company services of of Texas Sections accordance with tion in by any company such the Bishop 'has shall find if the and very thereto, acceptable, issue it shall been that the at applicant entitled Bishop expending is made provision its business and that certificate, Further etc. hardly the services of two carriers would that: adequate. Findings be were made as to grant- of the Commission order “The required different metals in the construc- certificate and the application ing said tanks in hauling of the of certain be unless void shall thereunder chemicals,' applicant and found that the in its shall the Commission equipped trucks, with such and that there findings of fact order and delay in securing tank cars—that haul- the in detail pointing out by ing quicker tank trucks was much of facilities the services and of by tank cars. need carriers, public and existing Likewise, Finding was made that service. the two State- for the have no wide motor carriers cannot render an ad- shall applica- equate throughout service any contract the State to the grant any com- chemical industries of there transportation exists tion for territory public necessity between convenience modities service, finally considering carriers that after where the any points evidence, records, ren- the law capable of own rendering, regulations, rules and the Commission was reasonably adequate service dering, a opinion of that the should commodi- transportation of such granted. ties. The trial court filed extensive amending designated as order conclusions of law. The fact Certificate No. Carrier Specialized Motor filing were as of. filing applica- of 6950, and recites the protest plication, hearing, tion, hearing, and found that notices and certificate, and mention was of made owner of Certificate applicant prior of orders and contents thereof. seeking to amend and was No. 6950 “chemicals, chemical adding found that the court did . chemicals,” and that products and inadequacy forth in detail the set transport- would authorize amendment transportation specify facilities nor regardless bulk ing of required, facilities are wherein additional names. trade took,into consideration the evidence of applications 1949and prior stated that Commission the part Transport Company pos- is based in orders to the order had issued industry Mr. Robertson testified as to the owner- growth the chemical future sible ship of Certificate and of termi- speculative. and is transport- nals and suitable for did not found that The court ing chemicals of a total value over fact, complete findings contain full $300,000 more, necessary buy and if nature, etc., general but were determining there confusion the services and established that transport. what chemicals his can were inade- existing carriers adequate; Best, appel- R. quate, Manager that such were C. Assistant but necessity lant, public showing no testified that his had numer- there was promoted requests ous commerce order, specifically named, some; that all recited transportation interpreting quests confusion exists in his certi- adequately ; order have been ficate that it is covered to consult chem- acceptably ists in order to handled. ascertain whether certain *5 named chemicals not listed in the certifi- as matter of law court concluded cate transported; can be is not provisions of Article that under the practical operate to under the old certifi- juris- no 5a(c), the Commission had cate. etc., consider, diction to Pitts, R. C. Assistant Traffic Manager application to because a failure Phillips for Company, Chemical testified inadequacies, in etc. detail the company plants that his had located in four Other conclusions were made to evidence places expansions in Texas and are under- prior hearings authority as to the of the way locations; at some of the that various interpret previous to orders types of chemicals are being manufactured facts; or consider future that the order was acetaldehyde, including great plant ex- failing void in to contain full and pansions being made; that he has made fact, etc.; there was no an effort to appellant use the services of support evidence to finding on the movement acetaldehyde inadequate service, public necessity, Bishop appellant to Houston but found that public convenience, etc., but that the evi- necessary have did not dence demonstrated 'the adequacy company shipping that his truck trans- facilities, absence of ports; that he is familiar with the fact public need or convenience. appellees Transport York and Com- pany of Texas transport have to presented The evidence on the trial of in liquid generally. chemicals form this case that of plain- four witnesses for tiff, herein, appellees and of seven for the Alex Wolff testified that his company is defendants, herein, appellants for manufacturer of vinegar Houston, the a part testimony Texas, most adduced in product the hear- and distributes his to vari- ing points before the ous in Texas rail and customer order under granted attack July trucks barrels and in bulk amounting to 400,000 gallons about annually and that equipment appellant has transport vin- McNamara, engineer, Witness a chemical tanks; egar in stainless steel or wooden viewpoint testified that from a scientific nothing that he knew about the chemical, everything is a but from com- appellees. point of mercial view such is not true. Stocks, Supervisor The witness discussed and defined the a chemical John Houston, commodities listed in the testified that he several often acetaldehyde, formaldehyde ships there are 26 in and that number each and caus- trucks, listed, soda in tank sometimes other names tic less than have and that pay rate; confusing layman but has tank truck to deter- a tank appellant compartmentalized transported. equip- has just could be mine what and that he could acetaldehyde convenient haul in some would more ment that pressure purchase is build- his tanks and could that his expensive; less equipment; other position in a that he is plant. ing a new to handle amount of such the celanese DeRouen testified A. that is tendered. manufac- division corporation, Franklin, Mr. Manager Traffic for Trans- Texas, and is Bishop, chemicals at tures port Company, testified that his Texas, and Pampa, plant at constructing a transport has been authorized to ship to various expects chemicals and acids since 1949 on a State- specifi- which are some area, wide and has terminals at various certificate, and cally in Robertson’s named State, cities in the and that his meat com- can- but ship requests to pany pieces equipment, had 155 some ship. legally he can tell what chemicals specialized of which hauling chem- com- tank truck only two That there are icals, glad and can and would be to move panies types offered, all of commodities and that two of the these are generally permit of the Robertson would appellees. divert business. mana- by the traffic given Testimony was testimony Other was had to the effect appellees that ger for one equip- carriers had the compart- have Company Texas did not ment to chemicals ten- of this The President tanks. mentalized dered purchase if *6 industry that the chemical company testified additional. thought he Texas and that growing in position to in a better trucking his firm was believe, We do not in view of the than rail carriers the chemical traffic handle Thompson decisions in Hovey v. Petroleum a faster because it is service. Company, 554, 149 491, Tex. 236 S.W.2d appellant The Vice President of Robert- Thompson and in Commission, v. Railroad son testified as to the val- supra, question that the order in is valid company’s equipment ue of his and that because it failed to set forth full and com began operating under the new plete finding of fact and pointing out in certificate, during the time between detail the of the service and the issuance of facilities of the existing carriers and the restraining on 'No- public need for the service as is transported 1952, 19, his vember required by 5a(d). Section four five under certificate, aggregating old fifteen The evidence was before twenty loads, tank truck entered and had court who in his found agreement into an of existing car Bishop Houston and Deer Park. adequate riers were acceptable for the transportation only new York, Transport President Mr. of York involved, and that it was not established Co., Inc., Houston, testified that his com- by substantial evidence that there was a pany State-wide had public necessity for the service or that types liquids various of chemical in tank public convenience would promoted be 1949; specialized trucks in bulk since the existing carriers were rendering equipment purchased but none has been reasonably adequate service, and we be put into use. That his can justified lieve the court was in so holding. move much more chemical commodities carefully his have are available. That We considered all of the testimony vinegar not been offered for trans- and summarized some of it and 400,000 portation gal- but he could handle we do not find evidence of a substantial easily like lons and would to have busi- nature that is a necessity there testified the additional granted, and needs witness service pub- ness it. The or that 478 reasonably supported by order was [promoted convenience be lie substantial that reason- evidence. application, or granting of
, being rendered. is not able service In judgment event the should n provides versed and the cause Article 911b remanded because the 6(d) improperly pre^- trial court given admitted and that the Commission n sumably when considered specialized certificates evidence that issue Company there purchased of Texas had evidence addi- shown equipment set out. tional therein suitable for conditions the trans- certain exists portation subsequent of chemicals . to the court cannot time recognize that the Commission entered We its order. Com for that substitute “patch If a can up” thus and over- judg be shown unless mission come a finding of the Commission that the founda is without of the Commission ment present service inadequate because of arbi unreasonable fact, or was tire lack of such then existing Commission, 123 Shupee Railroad trary. v. carriers will be monopo- entrenched in a 521, S.W.2d Tex. 73 listic field long they correct, so before rule was con evidence The substantial trial, inadequacies found Trapp Supreme v. by our sidered and made the basis of This, its- order. Co., Inc., 198 145 Tex. Oil Shell my opinion, not be should the law. Haw therein determined. S.W.2d Company, Tex. kins v. Texas of Court of 338, affirming decision S.W.2d 1003; 203 S.W.2d Civil Jones 198; 362, 224 Marsh, S.W.2d 148 Tex. Colorado Engineers v. of Water Board Tex.Sup., District, Municipal Water
River 254 S.W.2d *7 that the order Having concluded evi- HOLLAND supported reasonably full and dence, to set forth failure out in pointing complete findings CO., LANSDOWNE-MOODY service and detail No. 3179. existing carriers service, we do public need Court of Civil of Texas. the other pass on not believe Waco. by appellant. points raised 3, 1954. court judgment of affirmed.
Affirmed.
HUGHES, Justice. I respectfully partly dissent because am I in the constitutional believer dec- devout “monopolies mandate that laration govern- a free contrary genius ment, never allowed”. Art. arid shall Ann.St. Vernon’s Constitution. Texas § opinion Specifically I am the were sufficient and order