G. C. JAVIER, PETITIONER AND APPELLANT, VS. CAYETANO ORLANES, JUAN GONZALEZ AND SATURNINO CORTEZ, RESPONDENTS AND APPELLEES.

This is a petition to review the joint decision rendered in cases
numbered 11871, 13976, 15125 and 16478, of the Public Service
Commission, dated December 13, 1928, wherein Juan M. Gonzalez, Cayetano
Orlanes, Saturnino Cortez, and Gregorio C. Javier, respectively, were
the applicants, the dispositive part of which, in regard to said
applicants, is as follows:

“Wherefore”, the Commission believes it is proper to
issue, and it hereby orders that upon payment of the corresponding
fees, there be issued to each of the applicants, Saturnino Cortez, Juan
M. Gonzalez, Gregorio C. Javier, and Cayetano Orlanes, the certificate
of public convenience which each of them applies for, and which shall
be subject to the following conditions:

“1. That the
applicant Saturnino Cortez (case No. 15125) shall operate in the
service of the public for the transportation of passengers and freight
his present auto-trucks authorized under the certificate issued in Case
No. 8711, plus two additional Chevrolet auto-trucks of
one-ton capacity each, on the line San Pablo-Manila via Calauang and
the intermediate points and vice versa, making the trips in accordance
with the schedule attached to this decision and made an integral part
hereof, marked Appendix A.

“2. That the applicant Juan M.
Gonzalez (case No. 11871) shall operate for the convenience of the
public for the transportation of passengers and freight, his auto4ruck
service, whose equipment consists of eight (8) Chevrolet and
International auto-trucks on the line San Pablo-Manila via Calauang and
intermediate points and vice versa, making the trips in accordance with
the schedule attached hereto and made an integral part hereof, marked
Appendix B.

“3. That the applicant Cayetano Orlanes (case No.
13976) shall operate his auto-truck service for the transportation of
passengers and freight, on the line San Pablo-Manila via Calauang and
intermediate points and vice versa and Canlubang-Calamba and vice
versa, making the trips subject to the schedule attached to this
decision and made an integral part hereof, marked Appendix C.

“4.
That the applicant Gregorio C. Javier (cases Nos. 16478 and 17364)
shall operate his service in the transportation of passengers and
freight, whose equipment consists of his present auto-trucks on the
line San Pablo-Manila via Calauang and intermediate points and vice
versa; San Pablo-Manila via Alaminos and vice versa; Manila-Pagsanhan
and vice versa; and Canlubang-Calamba and vice versa, making the trips
subject to the schedule attached to this decision and made an integral
part hereof, marked Appendix D.

“5. That the applicants shall
not modify the manner herein prescribed for making the trips of their
respective transportation services, under the schedules and limitations
contained in Appendices A, B, C, and D, nor shall they make tiips
outside of said schedules, nor shall they fail to make the trips
specified therein, nor shall they substitute their equipment, nor
increase the same, nor operate beyond the lines herein authorized
without previous authority from this Commission.

“And said
applicants are prohibited from permitting anyone who may have or
possess one or more auto-trucks registered fictitiously in the name of
any of the applicants in the office of the Bureau of Public Works, or
surreptitiously covered by any authorization to increase the equipment,
to operate under the certificates of public convenience that may be
issued in this case.

“6. That all of the trucks of the
applicants when making trips on the line San Pablo-Manila via Calauang
shall have the following signs:

“SAN PABLO-MANILA VIA CALAUANG

“MANILA-SAN PABLO VIA CALAUANG

“Applicant Cayetano Orlanes shall, in addition, have the following routes:

“CANLUBANG-CALAMBA

“CALAMBA-CANLUBANG

“And applicant Gregorio C. Javier, the following:

“SAN PABLO-MANILA VIA ALAMINOS

“MANILA-SAN PABLO VIA ALAMINOS

“CANLUBANG-CALAMBA

“CALAMBA-CANLUBANG

“MANILA-PAGSANJAN

“PAGSANJAN-MANILA

“And all of the applicants shall be strictly governed in their charges by the following;

“PASSENGER AND FREIGHT TARIFF

“Fare
shall be collected according to the distance travelled. The passenger
rate shall be 2 centavos per kilometer or fraction thereof. The minimum
passenger rate shall be ten centavos. Children less than three years of
age shall not pay any fare, but children from three to nine years of
age shall pay half fare.

“Passengers may carry, gratuitously,
baggage not exceeding ten kilos in weight, and for any excess, they
shall pay in accordance with the freight tariff.

“Freight
shall pay at the rate of P0.0005 per kilo per kilometer or fraction
thereof. The minimum charge for freight shall be ten centavos.

“The
transportation service shall be rendered in accordance with the
schedules and limitations prescribed in conditions 1, 2, 3, 4, and 5.

“7.
That all the applicants are required and ordered to respect and comply
with and to cause all their employees, agents, and mandataries to
respect and comply with each and every one of the provisions contained
in chapters one and three of order No. 1 issued by the Commission and
effective from January 1, 1927, in so far as they may be applicable to
and compatible with the foregoing conditions.

“The
certificates of public convenience that may be issued by virtue of this
decision shall be in force from the date of their issuance and shall
remain in force until further order to the contrary of this Commission.
The applicants are advised that if they do not pay the corresponding
fees for said certificates within thirty days from the date of the
notification of this decision, the latter shall be revoked and set
aside without previous hearing.

“Issued in Manila, December 13, 1928.

“M. V. DEL ROSARIO

“Associate Public Service Commissioner”

Gregorio C. Javier, who had objected to the applications filed by
Juan M. Gonzalez, Cayetano Orlanes and Saturnino Cortez, respectively,
filed the instant petition for review, based upon the following alleged
errors assigned to the Public Service Commission in its aforementioned
decision, to wit:

“1. The Commission erred in not denying the
respective applications of Juan Gonzalez, Cayetano Orlanes, and
Saturnino Cortez in cases Nos. 11871, 13976 and 15125, and in not
granting petitioner’s application in case No. 16478.

“2. The
Commission erred in not holding that the granting of a license to four
different operators over the same autobus line (San Pablo-Manila) would
inevitably result in ruinous competition among them and would not be of
any benefit or convenience to the public.

“3. The Commission
erred in not holding that the petitioner, G. C. Javier, as the first
regular operator over the autobus line in question, and in accordance
with the right reserved to him by the Commission in case No. 13777, had
a vested and preferential right over the respondents, each of whom
seeks to acquire another and a later license over the same route.

“4. The Commission erred in denying petitioner’s motion for a rehearing.”

The evidence shows that on the San Pablo-Manila line, along which
the applicants petitioned for authority to run their auto-trucks to
carry passengers and freight during regular but different hours, the
number of passengers is such that the auto-busses and auto-trucks
operating thereon are not enough to transport all of them, and many
have to utilize carretelas, carromatas and horses for transportation.

With respect to the first assignment of error, although it is true
that Gregorio C. Javier was the first to obtain a certificate of public
convenience and license to engage in the business of land
transportation with fixed hours of arrival and departure between San
Pablo and Manila and intermediate towns, having engaged in said
business since March, 1928, it is likewise true that Juan M. Gonzalez
and Saturnino Cortez had been common carriers between San Pablo and
Manila before him, though with irregular hours of arrival and
departure. And if they now apply for a permit to make regular trips, it
is because in its decision of November 15, 1927, rendered in cases Nos.
9872 and 10135., the Commission announced its new policy of not
granting a certificate of public convenience except to common carriers
with regular routes, thus requiring irregular operators to convert
their operation into a regular one. In view of this it is only just and
equitable to grant the applications of Juan M. Gonzalez and Saturnino
Cortez, since they were the first to serve the public between San Pablo
and Manila, thereby contributing to the facility of communication
between the two points, and aiding, at least indirectly, in the
development of commerce and industry. Thanks to their initiative, and
through the interest awakened in the public by their trips, Gregorio C.
Javier has been able, through the proper authority, to establish the
enterprise he now manages. Besides, such grant does not and cannot
prejudice the interests of said Gregorio C. Javier, for the reason that
he has already been operating on the same route, although irregularly.

With regard to the applicant Cayetano Orlanes, he is a new-comer who
has never operated as a regular common carrier, or as an irregular
carrier on the San Pablo-Manila line. He is therefore in a Worse
situation than he was with respect to the Batangas Transportation
Company in the case between him and said company, decided by this court
on December 19, 1928 (52 Phil., 455); and the judgment therein rendered
against him is, with greater reason, applicable to this case, nor are
the two cases sufficiently distinguished from each other by the fact
that his original application, which was not granted, was filed before
that of Gregorio C. Javier, which was granted, and that there are
enough passengers and freight between San Pablo and Manila to let all
live. (42 Corpus Juris, 686.)

Inasmuch as Gregorio C. Javier is already an established carrier
with a certificate of public convenience and license to engage in the
business of land transportation with fixed hours of arrival and
departure between San Pablo and Manila and intermediate towns, justice
and equity demand that before a new enterprise or a new carrier be
permitted to invade his territory and enter into competition with him,
he be given an opportunity to extend his service in order to meet the
demands of the public in the matter of transportation. This rule has
been laid down in several decisions of public utility commissioners in
different states of America, cited with approval by this court in the
aforementioned decision of December 19, 1928, rendered in the case of
Batangas Transportation Co. vs. Orlanes (52 Phil., 455), and summarized in 42 Corpus Juris 689, paragraph 124 (c), as follows:

“OPPORTUNITY TO PROVIDE SERVICE.—Under some
regulations, even where an existing carrier is not giving adequate
service, an applicant desiring to operate in the preempted territory
cannot obtain a certificate until the existing operator is given a
prescribed period of time in which to provide the service that the
commission requires; and this rule applies in the case of an
application by another carrier to change its route or extend its
service, as well as in the case of an original application.”

Neither can Cayetano Orlanes look for protection to the fact that
Gregorio C. Javier has not asked for an injunction against him to
restrain him from entering upon the business in pursuance of the
authority granted to him in the judgment appealed from, inasmuch as
Gregorio C. Javier appealed therefrom, and therefore Cayetano Orlanes
was aware that if said judgment was reversed, the authority granted to
him therein would be null and void. And having knowingly run the risk,
he alone must suffer the consequences of his own act.

In view of the foregoing considerations, we are of opinion and so
hold: (1) That a land carrier with irregular trip hours who has
obtained a certificate of public convenience prior to a carrier with
regular trip hours, is entitled to a license changing his irregular
hours into regular hours, so long as they do not coincide with those of
the land carrier with regular hours already established, nor prejudice
the latter; (2) that priority in the filing of an application for a
certificate of public convenience, which has not been granted, gives
the party filing it no right to invade the territory of another whose
application, though filed subsequently, has been granted and who has
been operating as carrier by virtue of the certificate thus issued; (3)
that a land carrier with regular trip hours, whose service is
satisfactory and adequate, is entitled to be given an opportunity to
extend said service, if the public need so requires, before a stranger
or new carrier is permitted to invade his territory.

By virtue whereof, the judgment appealed from is affirmed in so far
as it refers to the applications of Juan M. Gonzalez and Saturnino
Cortez, respectively, and is reversed with respect to Cayetano Orlanes,
Gregorio C. Javier being granted all the trips between San Pablo and
Manila applied for by him during the hours to be fixed by the Public
Service Commission as most convenient to the public and to the
interests of the regular carriers operating on the same line, without
special pronouncement as to costs. So ordered.

Avanceña, C. J., Johnson, Street, Villamor, Johns, and Romualdez, JJ., concur.