NEGROS ICE AND COLD STOKAGE CO., INC., PETITIONER VS. PUBLIC SERVICE COMMISSION AND BACOLOD ICE & COLD STORAGE CO., INC., RESPONDENTS.

This is a review of the order of the Public Service Commission dated
December 8, 1948, authorizing the Bacolod Ice & Cold Storage
Company Inc. to sell its ice in the City of Bacolod, and all
municipalities of. Occidental Negros.

It appears that said corporation (hereafter called Bacolod Ice for
short) obtained about October 1947 a certificate of public convenience
to operate and maintain a 15-ton ice plant in the City of Bacolod, with
the privilege to distribute its products within the whole province of
Occidental Negros, excepting that city (Case No. 17620). Six
months thereafter, in March 1948, said corporation, applied for
inclusion of the City of Bacolod in the territory previously assigned
to it. The Negros Ice & Cold Storage Co. Inc. (herefater named
Negros Ice) possessing a certificate of public convenience to
manufacture and retail, ice within the city, opposed the application,
which after hearing was granted, the commission saying in part:

“After a careful examination of the entire record,
we are satisfied that the need for authorizing the applicant ,to sell
ice in Bacolod City has been sufficiently established. Bacolod City is
much larger in territory and is more populated than the former
municipality of Bacolod. It can hardly be denied that this increase in
area and population has brought about a corresponding increase in the
demand for ice coming from thegeneral public, new commercial
establishments, hotels, restaurants, refreshment parlors, bars and
other businesses which need ice regularly. We believe that oppositor’s
5-ton production, while it might have been sufficient for Bacolod when
it was a municipality, is inadequate and insufficient to meet the ice
demands of a community as large, populated and commerciallyactive as
the City of Bacolod, so that it becomes necessary, in the interests
of the public, to permit the herein applicant to supple? ment
oppositor’s service.”

Dissatisfied with the ruling, the Negros Ice filed. this petition,
which is based upon two main propositions to wit: (1) the decision
violates the agreement entered into by and between the applicant and
the oppositor in Case No. 17620 and (2) the decision is contrary to
law, not being supported by the evidence.

When the Bacolod Ice was first authorized to manufacture and sell
its ice in the Province of Negros (case No. 17620) the order granting
the certificate declared in part:

“* * * Applicant proposed, to include the City of
Bacolod within its territory of operation, but in view of the
opposition filed by the Negros Ice and Cold Storage Co., Inc., an
agreement was reached between the applicant and the oppositor whereby
the former amended its application by eliminating the City of Bacolod
from its proposed territory of operation, and the latter desisted from
prosecuting its opposition. It was further agreed that the applicant
would under no circumstance knowingly sell ice to any person or entity
who would use the ice so purchased within the City of Bacolod or who
might resell it within the limits of said City; also that applicant’
would take all the necessary steps and precautions to prevent that any
quantity of ice obtained from its plant be ultimately used sold or
distributed within the limits of the City of Bacolod.”

The Negros Ice contends that the agreement above mentioned has the
force and effect of law and should debar the Bacolod Ice from entering
the market of Bacolod City.

We have serious doubts “whether the said agreement bound the Bacolod Ice, never thereafter even if circumstances have changed,
to apply for permission to sell its ice in, the City of Bacolod. It was
obvious that the Bacolod Ice merely manifested its conformity to a
scheme whereby it would be authorized to sell ice throughout the
province, excepting Bacolod. But it did not promise to the Commission
that it will never thereafter apply for authority to sell ice in the
City. And supposing that Baeolod Ice convenanted with Negros Ice that
in consideration ; of the latter’s withdrawing its opposition,’ the
Bacolod Ice promised never to invade the territory of the City of
Baeolod, that stipulation is not valid, being contrary to public
interest. Two public service companies may not validly agree to divide
among themselves a certain territory and impose their agreements upon
the Public Service Commission.

In a similar case ^[1]
Fernando Enriquez a transportation operator agreed with the Pampaiiga
Bus Company “not to present any application in the territory now1
occupied” by the latter; Subsequently he applied far, and was granted
permission to operate in the same territory of the Pampanga Bus Co. On
appeal, we made the following opposite remarks:

“The principal question to decide in the two
appeals is whethe the Public Service Commission erred in ignoring and
not giving any consideration, force or effect to the agreement dated
November 9, 1929, entered into between, the parties, of the following
tenor:

“Come now the undersigned attorneys and -to this Honorable Commission respectfully state:

“1. That Fernando Enriquez withdraws the three motions presented in the above-entitled case.

“2. That Fernando Ehriquez withdraws his application to operate in all
points served by the Pampanga Bus Company and agrees not to present any
application iri the territory now occupied by the Pampanga Bus Company.

“3, That the Pampanga Bus Company agrees to withdraw its opposition to
the application of Fernando Enriquaz for additional hours from Masantol
to Manila with the right to pick up passengers, in Macabebe and Apalit
* * *.

“We are of the opinion that such agreement cannot be
interpreted as to deprive the PublicService Commission of the power,
conferred upon it by law to’ issue certificates of public convenience
and to promulgate orders and regulations intended to supervise a public
service the better to benefit and serve the public interests. To
sustain the contention of the appellant would be to deprive the
commission of said power * * *. Beyond dispute is the power of the
Public Service Commission to modify and alter it’s orders for the
purpose of adapting the same to new situations and circumstances as
long as the latter are reasonably supported by the evidence presented *
* *.

“As a general rule, the rights granted by law are
waivable, unless such waiver is against public interest (art. 4, Civil
Code), in which case it cannot be done, and if done, will be void. The
waiver made by Fernando Enriquez, in .the aforesaid agreement, of his
right to ask for the lifting of the restrictions imposed in his
certificates of public need and convenience is illegal and void because
contrary to public interest.”

In regard to the second proposition a reading of the record
discloses that there is evidence reasonably supporting the Commission’s
finding that public interest and convenience will be subserved by
permitting the Bacolod Ice to dispose of its products in the City of
Bacolod.

Firstly, there is this same oppositor’s petition in Case No. 24398
wherein it applied for permission to increase the output of its
business establishment. Therein it alleged under oath “that the 5-ton
production of its plant is not sufficient to supply the entire City of
Baeolod with ice.^[2]“

Secondly, the notable growth and progress of the city from 1939
(when Negros Ice was established) to the year 1948 was amply
demonstrated by its increase of population from 57,474 to 101,433
together with the expansion of its limits and its conversion into a
chartered city, coupled with its booming construction activities and
increasing commercial and industrial enterprises. All of which
naturally developed a greater demand for the needs and comforts of
civilized life, ice among others.

Thirdly, some persons testified as to their inability to obtain
service from the Negros Ice on various occasions. Proprietors of
several refreshment parlors in the city complained in writing to the
mayor of Bacolod about the inability of the Negros Ice to fully meet
the local demand for ice, and criticized the refusal of the Bacolod Ice
to sell to them—which refusal, by the way, was due to the restriction
originally imposed in the certificate granted by the Commission.

It is unnecessary to go into further details. Enough has been found
to apply the constant principle that when there is evidence of record
reasonably supporting the findings of fact made by the Public Service
Commission this Court will not interfere with and alter the same.3

The decision under review is affirmed with costs. So ordered.

Paras, C. J., Feria, Pablo, Padilla, Tuason, Jugo and. Bautista Angelo, JJ., concur.

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^[1] Pampanga Bus Company vs. Enriquez, 66 Phil., 645.

^[2] Such
application failed of approval, not by reason of inadequacy of demand,
but thru the failure of the Negros Ice to obtain on time sufficient
equipment for the enlarged service.

^[3] Javellana vs. La Paz Ice Plant and Cold Storage Co., 35 Off. Gaz., 1756; Aleosan Transportation Co. vs. Public Service Commission, 35 Off. Gaz., 2080; Ampil vs. Public Service Commission, 59 Phil., 556; Manila Electric Company vs. Balagtas, 58 Phil., 429; Calabia vs. Orlanea & Banaag Transportation Co., 55 Phil., 659.