G.R. No. 11203. January 23, 1917
T. R. YANGCO, PETITIONER, VS. THE BORAD OF PUBLIC UTILITY COMMISSIONERS, RESPONDENT.
MORELAND, J.:
Capiz, sent the following communication to the Board of Public Utility
Commissioners:
“Gentlemen: I have the honor to enter complaint against the owners of the S. S. L. R. Yangco
on the grounds of (1) failure to follow out sailing schedule as
specifically advertised and (2) failure to duly notify the public at
the port of Capiz of the change in routing.
“Specifications follow. On June 22, 1915, the master of the steamship L. R. Yangco advised
Mr. Jose Lara, post- master, Capiz, by wire from Manila that his
steamer would arrive in Capiz at 8 o’clock a. m. on Friday (June 25)
and that she would sail for New Washington at 8 o’clock p. m. of the
same day. This information came in accordance with the established
practice of the master of the vessel in question. Advices so furnished
are primarily for the purpose of enabling the local post office to
dispatch mail on the steamer. Out of courtesy and for the convenience
of the public and local Government officials Mr. Lara posts these
advices on the bulletin board in the provincial government building.
The telegram in question was posted in like manner on the day received,
and was noted by this office.
“The undersigned and Mr. D. E. Henry, senior supervising engineer,
Bureau of Public Works, desired to go to New Washington. Upon the
publication of the advice from the master of the vessel that she would
sail for New Washington on the evening of the 25th we made our plans
to sail on the steamship L. R. Yangco.
“Upon arrival of the steamer at Capiz it was announced that she had
just arrived from New Washington and would sail the same evening for
Manila via Romblon and would not touch at New Washington. In the
meantime no further advices had been received in Capiz concerning the
change in routing in spite of the fact that the steamer had touched at
no less than two ports from which notice could have been telegraphed to
Capiz, namely Romblon and New Washington.
“The undersigned and Mr. Henry were then obliged to hire a launch to
make the trip to New Washington at a cost of P30. Regular commercial
transportation would have cost but P4.20.
“Had the advertised schedule been followed we would have sailed on the steamship L. R. Yangco,
Had no information been received we would have sailed on the launch
early in the morning of June 24, thus avoiding a delay of more than one
and one-half days.
“I enclose for your information a certified copy of the telegram received by Mr. Lara from master of the steamship L. R. Yangco on June 22.
“The undersigned requests that the owner and master of the steamship L. R. Yangco be restrained from giving out unreliable information which deceives the public and causes undue annoyance, expense and delay.”
The telegram referred to is as follows:
“Jose Lara, Capiz.
“L. R. Yangco would arrive there Friday eight morning would sail same day eight night for New Washington.
“Blanco.”
Upon receipt of this communication the Board served the following notice and order upon the respondent company:
“You are hereby required to answer the complaint of the complainant
herein, copy of which is hereto attached and herewith served upon you,
within 10 days from the date of this order.”
In response to this notice and .order the respondent company
answered admitting the sending of the telegram above set out but
alleging “that this notice was given merely as a matter of
accommodation to the post-office authorities and was not intended to be
used as a notice to the public.”
The answer then alleges that “the Government of the Philippine
Islands, does not pay respondent anything for the carriage of the mails
and that this service is rendered voluntarily, as a matter of mere
accommodation to the people of the places in which respondent’s
steamers touch;” and further alleges, “that respondent does not
undertake to maintain any fixed schedule of arrivals and departures for
the steamer Luis R. Yangco.”
Respondent also sets out by way of defense “that upon the arrival of the steamship Luis R. Yangco at
Capiz on June 25 last, at shortly after 9 a. m., the captain of the
vessel decided that it would be more advantageous for commercial
reasons, to give up the proposed trip to New Washington, and return to
Manila by way of Boac and Romblon and thereupon about 9.30 a. m. on the
same day, so advised the postmaster of Capiz by telephoning to him to
that effect from the Lipas dock.”
The last paragraph of the answer is as follows:
“That respondent regrets that the change in the itinerary of the steamer Luis R. Yangco
on the occasion in question has caused inconvenience to the
complainant, and to avoid such misunderstanding in the future all local
notices relating to the sailing of the said vessel will be made subject
to the proviso that the right is reserved to abandon such projected
voyages without notice, this notification to the public having been
continuously given for sometime past in the published advertisements in
the daily press of Manila.”
Upon the hearing of the case no evidence was presented by the
complainant or by the Government or the Board of Public Utility
Commissioners. The facts set out in the complaint were admitted. The
respondent offered Evaristo Francisco, one of its managers, as a
witness, who testified in substance that the published schedule of the
respondent expressly reserved the right to change the route therein
set; out without previous notice to the public; that it had no contract
with shippers either in Capiz or New Washington and none with the
Government about carrying the mails; that the telegram was sent as an
accommodation to the public and not as a duty which it owed under its
published notices and schedule.
On examination by a member of the Board the witness testified in
effect that up to the time of the complaint the usual rout of the
vessel was from Manila to Boac, Romblon, from Romblon to Capiz
sometimes, and sometimes to New Washington.; that notice of the arrival
and departure of vessels at and from Capiz and New Washington was given
when the captain deemed advisable; that respondent had no agent at
Capiz but it telegraphed the postmaster to notify all interested as to
the arrival and departure of the ship; that the vessel always goes to
New Washington but not always direct, sometimes going to Capiz first
and from there to New Washington. The witness was asked by a member of
the Board if he had any plan by which “the difficulties indicated in
this complaint can be avoided,” and by which he “could accommodate the
business of the vessel to the necessities of the public,” To this
witness replied that the occurrences such as were set out in the
complaint were infrequent, and that he, “had no suggestion to make.”
This was the only witness sworn and this testimony is the only
testimony in the case except the written report of the captain of the
ship which refers exclusively to the occurrence complained of.
Upon the pleading and evidence the Board made the following order:
“We therefore order the defendant to establish a fixed schedule of arrivals and departures for the steamer Luis R. Yangco
between the ports of Manila, Boac, Romblon, Capiz, and New Washington,
to maintain such schedule unless prevented by weather or other
insuperable obstacles, to publish the same so that the terms thereof
may be known generally to the public served by him and to file a copy
thereof with this Board.”
This order is before us under an appeal taken under section 37 of Act No. 2307.
Many questions are raised and discussed. We find it unnecessary to
consider more than one. Courts will generally refrain from deciding the
question of the constitutionality of an Act of the Legislature unless
it is absolutely necessary to a final determination of the case
presented. Such a determination is not required here. We limit
ourselves, therefore, to a decision of the question presented by the
contention that there is not only absolutely nothing in the record to
support the order of the Board but also that such order is wholly
outside the issues raised by the pleadings, is contrary to the theory
on which the proceeding was heard and tried, and is a complete surprise
to the appellant who had no notice that the subject-matter of the order
was before the Board for consideration and was, therefore, deprived of
an opportunity to be heard with respect thereto.
We are of the opinion that the appellant’s contention is sound from
every aspect. We have quoted or set out the pleadings substantially in
full in order that the issues framed thereby may be clear. The
complaint is based exclusively on a particular and single occurrence, namely, that the respondent gave a notice to the public, by means of a telegram, that its vessel would be at Capiz on a certain day
and hour and would, on a certain day and hour, leave Capiz for New
Washington; and that respondent failed completely to comply with that
notice, but, instead, acted contrary thereto, the ship going from New
Washington to Capiz instead of from Capiz to New Washington as stated
in the notice. There was no suggestion in the complaint that respondent
was not, in general, serving the public properly and efficiently, that
its itinerary as published and adhered to was not the best under all
the circumstances both for the respondent and the public, or that
shippers and passengers suffered by reason of the schedule maintained
as compared with some other; and especially was there no suggestion or
hint in the complaint that the respondent should establish a fixed schedule, or even a schedule of any kind with
regard to any port or ports. Complainant does not profess to have any
knowledge on those subjects and does not deal with them in any way in
his complaint. His only allegation is that respondent did not live up
to or comply with a particular notice with respect to a particular call at Capiz, and that he was injured by that particular failure.
That this is so is, to our mind, shown conclusively, not only by the
facts stated in the complaint, but also by the prayer thereof. He
prays: “The undersigned requests that the owner and master of the
steamship L. R. Yangco be restrained from giving out unreliable information which deceives the public and causes undue annoyance, expense and delay.” There is no thought here of fixed schedules, or schedules of any kind, of particular port or ports in general. The simple cry is that, when the respondent gives a special
notice to the public that it will do a certain thing at a certain time,
it should not be permitted to ignore that special notice and do
something entirely different from that advertised thereby. He asks for restraint and not for affirmative action; for protection against unreliable notice and
not the fixing of a given schedule. He asks not for the protection of
shippers or passengers by a change in schedule or by compelling
respondent to run its ship according to a particular schedule. Nothing
of that sort. The complaint is specific, not general. A complaint that
a street car on a particular trip refused to stop at a designated place
and take on a particular person cannot be construed into a petition
that the street car company change its schedule or put on new cars or
alter its manner of doing business in general, or into an allegation
against the efficiency of the service rendered to the public as a whole.
Moreover, the complaint in this proceeding is not that the
respondent did not perform its duties in general as a common carrier to
the satisfaction of the public, or that it failed in any of those
duties which a common carrier owes to the public. The only
specification is that the respondent failed in a special duty created by a special
notice, contained in the telegram, referred to in the complaint herein.
The complainant contends that the sending of that telegram created a
special duty on the part of the respondent, namely, that of complying
with it; and that is the duty which the complainant claims the
respondent violated when, instead of complying with the notice, it
ignored it. The complaint, then, was not aimed at the relation of the
common carrier to the public in general. It did not refer to or touch
that relation. It did not declare that the respondent had violated any
duty springing from that relation. It did not call in question its
schedule, or the manner in which it was followed, nor did it charge
that the operations of the respondent in general did not meet the
demands of the public fully. It was aimed at a special incident; at a
refusal to perform a special duty; a failure to meet a particular
engagement made on that particular occasion by virtue of the notice
contained in the telegram. In other words, the complaint by its silence
concedes that the respondent was doing its duty to the public in
general; and simply alleges that it failed to live up to a special engagement made for it on a special occasion.
To put it in another way, the complaint asserts and charges that the
respondent, in the performance of its duty, failed in one small
particular on one single occasion. It was not meant to charge thereby
that the performance of the duties in general was bad, or that the
public was badly served in general, or that it ought to make a new
schedule or maintain a fixed schedule. A complaint made to a tailor
that a coat made by him for a customer lacks a button would not support
a charge that the material of the coat was not as ordered, or that the
cut of the coat was not as requested, or that the tailor should make a
new coat. What complainant presents is simply a failure on the part of
the respondent in a very small and minor particular which occurred
while engaged in the performance of its duties and the discharge of its
obligations, to which performance and discharge in general no objection
was made.
The complaint filed was answered by the respondent. The answer
adhered strictly to the allegations of the complaint and presented only
such facts as it was thought tended to show that the respondent had a
right to ignore the notice referred to in the complaint, or, if it did
not have that right, its failure to comply therewith was excusable
under all the circumstances. It fairly joined issue with the
allegations of the complaint and assisted in presenting to the Board
the very question which the complainant intended to present.
The evidence offered by the respondent, as we have already seen, was
directed to the issue framed by the pleadings and to no other; and it
may be safely said that there is nothing in the evidence which would
warrant us in holding that the issues framed by the pleading were
enlarged by consent of parties on the trial.
We are of the opinion, therefore, that the order of the Board of
Public Utility Commissioners was outside of the issues framed by the
pleadings before it, outside of the question presented for
determination, and deals with a subject-matter foreign to that
contemplated by the parties. Such being the case it cannot be sustained.
By this statement it is not meant to hold that the Board itself
cannot present complaints and tender issues against public utilities
which, when accepted, may form the basis for an investigation within
the limits stated therein. Nor is it meant to hold that there must
always be a complainant apart from the Board itself. What is held is
that, in any case, whether begun by the Board or by a particular
individual, the public utility proceeded against is entitled to know
the facts upon which the complaint is based and the nature and extent
of the relief demanded. It is necessary that the utility be given a
proper and fair opportunity to defend itself. To do this it is
necessary that issues be framed in some manner or other. It is not
proposed to apply rigidly to proceedings before the Board of Public
Utility Commissioners the rules of pleading and practice which in
general govern proceedings in court; but it is the evident purpose of
the law, as it is a requirement of the principles which govern due
process of law, that a public utility should be duly and fully notified
of the act or omission of which it is charged; and that that charge and
that alone shall be the subject-matter of the investigation as well as
of the order made in consequence thereof. It is not due process of law
to charge a public utility with one act or omission and convict it of
another; nor it is due process of law to investigate a particular
subject in a given proceeding and then make an order which relates to
an entirely different subject.
We find the respondent’s contention with regard to the failure of
evidence to support the order of the Board to be sustainable also. No
officer or board can issue an order affecting the property or rights of
an individual or a corporation without evidence to sustain it. When we
thus speak of evidence we mean evidence which was taken by the Board
and appears in the record of the proceedings of the Board. It cannot be
something in the mind of one member of the Board or of all the members.
It cannot consist in something which one member knows or all of the
members know unless it is a matter of which they can take judicial
notice. It must be evidence which was presented during the proceeding
in such manner as to permit a respondent to meet it by evidence of its
own. That the statute (Act No. 2307) intended that the orders of the
Board of Public Utility Com- missioners should be founded on legal
evidence which appears in the record is clear from that provision of
section 37 which provides:
“The Supreme Court is hereby given jurisdiction to review said order
of the Board, and to set aside such order when it clearly appears that
there was no evidence before the Board to support reasonably such
order, or that the same was without the jurisdiction of the Board. The
evidence presented to the Board, together with the finding of the Board
and any order issued thereon, shall be certified by the Board to the
Supreme Court.”
If the Board may make an order without any evidence in the record to
support it, then the provision that the Supreme Court may review the
evidence on which the order is based is without significance. If there
is no evidence, the Supreme Court cannot review it; and the power thus
conferred upon it by the statute is without value or effect. If the
Board may draw its information from sources not shown by the record and
base its conclusions upon facts not proved and which do not appear in
the record, then the provision authorizing the Supreme Court to review
the evidence is meaningless.” Not only is the respondent entitled to
have in the record all of the facts which moved the Board to a
conclusion to the end that it may know what it has to meet, but the
people of the Philippine Islands are also entitled to have it there in
order that the statute authorizing the Supreme Court to review it may
be complied with.
An order, or judgment, or decree without evidence to support it is a nullity when properly attacked. (Edwards vs.
McCoy, 22 Phil. Rep., 598.) It is an act against which the party
adversely affected thereby has had no opportunity to defend himself and
it therefore deprives him of his liberty or property without due
process of law.
There is no evidence in this case that the public interests require
the order complained of. There is no evidence that the public interest
demands a fixed schedule. There is no evidence that the public would be
better served by a fixed schedule than by the present schedule; in fact
the evidence that the respondent has not now a fixed schedule is of the
meagerest character; and there is absolutely no evidence that the
public is suffering because the schedule is not fixed. Whatever
evidence there is on that subject, and there is almost none in the
record, shows that the respondent meets the demands of the shippers by
going to the places where cargo may be had.
The order of the Board of Public Utility Commissioners appealed to this court is hereby vacated, set aside and annulled. Costs de officio. So ordered.
Arellano, C, J., Torres, Johnson, and Araullo, JJ., concur.
CARSON, J., with whom Trent, J., concurs, dissenting:
I dissent.
Act No. 2307, which created the Board of Public Utility Commissioners,
as amended by section 10 of Act No. 2362, expressly defines the term
“public utility” as used therein to include every individual,
corporation and so forth that now or hereafter may own, operate,
manage, or control within the Philippine Islands any common carrier,
railroad, street railway, traction railway, steamboat or steamship
company.
Section 15 (a) of the Act provides that:
“The Board shall have power:
“(a) To investigate, upon its own initiative, or upon
complaint in writing, any matter concerning any public utility as
herein defined.”
Section 16 (b) is as follows:
“The Board shall have power, after hearing, upon notice, by order in writing, to require every public utility as herein defined:
“(b) To furnish safe, adequate, and proper service and to
keep and maintain its property and equipment in such condition as to
enable it to do so.”
Section 17 (c) is as follows:
“No public utility as herein defined shall:
“(c) Adopt, maintain, or enforce any regulation, practice,
or measurement which shall be unjust, unreasonable, unduly
preferential, arbitrarily or unjustly discriminatory, or otherwise in
violation of law; nor shall any public utility as herein defined
provide or maintain any service that is unsafe, improper, or
inadequate, or withhold or refuse any service which can reasonably be
demanded and furnished when ordered by said Board.”
Proceeding under and by virtue of the power thus conferred upon the
Board, the following order was made and published in the course of the
proceedings now before us for review:
“We therefore order the defendant to establish a fixed schedule of arrivals and departures for the steamer Luis R. Yangco
between the ports of Manila, Boac, Romblon, Capiz, and New Washington,
to maintain such schedule unless prevented by weather or other
insuperable obstacles, to publish the same so that the terms thereof
may be known generally to the public served by him and to file a copy
thereof with this Board.”
Upon receiving notice of the entry of this order the defendant owner
of the steamship, without making any attempt to procure its
reconsideration or modification by the Board, procured from this court
a writ of certiorari under the provisions of section 37 of Act No.
2307, by virtue of which the record of the proceedings had before the
board was brought here for review.
The petitioner now contends (1) that the Board erred in attempting
to substitute its own opinion as to matters of business policy for that
of petitioner; (2) that the Board exceeded its jurisdiction in
endeavoring to compel petitioner to establish and maintain a fixed
schedule of arrivals and departures for his steamers; (3) that the
order of the Board, if enforced, will deprive the petitioner of liberty
and property without due process of law and deprive him of the equal
protection of the law and will amount to a taking of his property for
public use without compensation; (4) that the order of the Board is
void because no notice was given to petitioner of the intention of the
Board to make such order; (5) that, as construed by the Board, Act No.
2307 constitutes an unlawful delegation of legislative power; and (6)
that the order of the Board is inherently unreasonable.
Since the majority opinion rests the ruling of the< court setting
aside the order exclusively on the contentions of counsel under the
fourth of these alleged grounds for reversal of the order of the Board,
I shall substantially limit myself at this time to a discussion of the
precise ground upon which the action of the majority is predicated,
merely expressing my opinion that the Board had full power and
jurisdiction to promulgate the order in question, with regard to which
I made the following observations in answer to contentions as to its
alleged inherent unreasonableness in my dissenting opinion filed at the
time of the suspension of the order pending these proceedings:
“To my mind, the order is so plain, simple and direct that it cannot
fairly be construed so as to admit of criticism of this character. It
merely requires the petitioner to do what is being done every day by
other steamship companies throughout the Islands, and throughout the
civilized world wherever “men go down to the sea in ships” that is to
say, to establish and maintain a fixed schedule of arrivals and
departures for his steamship, subject only to modifications
necessitated by wind or weather or other insurmountable difficulties.
It leaves the manner of compliance with the order to the owner of the
vessel, and asks nothing of him except that, so long as he holds
himself out as a common carrier between the ports specified in the
order, he shall carry on his business in a manner which the board is of
the opinion would be in the interest of the public, and which common
experience has shown to be entirely practicable in like situations.
“Had the board attempted to interfere to the extent of itself fixing
a schedule to which the owner of the vessel would be required to
adhere, it might well be objected that, in view of the peculiar nature
of the business in which he has engaged and of the conditions under
which he operates his steamship, the adoption by the board of such a
schedule would constitute an undue and an unreasonable interference
with his control over his own property; and no matter what schedule
might be fixed by the board, strong reasons could be and doubtless
would be advanced in support of a claim that the operation of a
steamship under that schedule would be unreasonable, burdensome and
impracticable.”
The majority opinion rests wholly upon the ground “that there is not
only absolutely nothing in the record to support the order of the Board
but also that such order is wholly outside the issues raised by the
pleadings, is contrary to the theory on which the proceedings were
heard and tried, and is a complete surprise to the appellant who had no
notice that the subject-matter of the order was before the Board for
consideration and was, therefore, deprived of an opportunity to be
heard with respect thereto.”
In support of this ruling, the pleadings and the evidence before the
Board are subjected to searching scrutiny and recourse is had, as it
seems to me, to the most technical rules of pleading and the strictest
rules of judicial interpretation in support of the contention that the
order is outside the issues raised by the pleadings and came as a
complete surprise to the appellant.
I am convinced that no such conclusion is sustained by the record,
and certain it is that appellant should not be heard to set up such a
contention for the first time on appeal to this court. Under the most
elementary principles of orderly procedure, it was his duty, if in
truth and in fact he was completely surprised by the order of the
Board, to apply to the Board for a reconsideration of its action before
coming to this court for redress upon that ground. The record discloses
that immediately upon the entry of the order he instituted these
proceedings for review without again appearing before the Board, and
without any intimation to the Board that its action in the premises had
taken him by surprise or deprived him of an opportunity to be heard
with respect thereto. Had he done so, there can be little doubt that he
would have been given the fullest opportunity to submit any additional
objections he might have desired to advance against the issuance of the
order and to support such objections with evidence; but he chose rather
to apply to this court forthwith, and, having done so, he should not be
heard to complain here, for the first time, that he had no opportunity
to be “heard upon the subject-matter of the order” issued by the Board.
The duty that rested upon him to seek redress from the Board itself, if
he was in fact surprised, before making any attempt to have the order
of the Board set aside on that ground, was not imposed by any mere
technical rule of procedure, but rather by the plainest principles of
fair dealing with the Board and with this court, and by those orderly
rules of procedure which, in the very nature of things, should control
in all proceedings such as those now under review.
But I do not believe that the appellant was in fact surprised by the
issuance of the order by the Board. Doubtless he did not know just what
action would be taken by the Board until the order was issued after the
hearing, but the whole record clearly discloses that he was fully
appraised as to the purpose and object of the proceedings, and that he
well knew that the inquiry based upon the complaint filed with the
Board was conducted with a view to ascertain what measures, if any,
should be adopted by the Board to require the owner of the steamship L. R. Yangco
to maintain a sailing schedule for that vessel of which the public
would be duly advised and which would not be subject to arbitrary
change.
While the complainant is not a lawyer, nothing could be clearer than
that in filing his complaint he was not seeking redress for a private
injury, nor attempting to recover compensation for the loss and
inconvenience to which he was exposed by the particular instance of
gross disregard for the public interests by the master of the steamship
L. R. Yangco set out in his complaint. He knew that no such
relief could be had at the hands of the Board. Clearly, his sole
purpose and object in filing his complaint was to secure some action
from the Board which would prevent the recurrence of similar incidents
in the future. Basing his complaint on a specific instance of (1)
failure to follow out sailing schedule as specifically advertised and
(2) failure to notify the public at the port of Capiz of a change in
routing, he sought relief from the recurrence of such incidents, and
specifically prayed that the master of the vessel be restrained from
“giving out unreliable information which deceives the public and causes
undue annoyance, expense, and delay.”
To this complaint the owner of the vessel answered under the advice
of counsel, admitting the truth of the facts alleged in the complaint
and expressing regret for the in- convenience caused the complainant;
but, in response to complainant’s prayer for relief, asserted that he
does not undertake to maintain any fixed schedule of arrivals and
departures for the steamer L. R. Yangco; that when he did
announce such a schedule he had the right to abandon it at will, for
his own convenience and commercial advantage; and that in future he
would expressly reserve that right in all published schedules for the
sailing and departures of his vessels.
Reading this answer together with the complaint, it seems to me that
the appellant himself tendered as the very issue of the inquiry, and of
the proceedings had before the Board, his contention that he did not
undertake to maintain a fixed schedule for his vessel and that he
should not be required to do so. How then can he claim to be surprised
by an order directing him to fix and maintain such a schedule; and on
what grounds can it be said that such “an order is wholly outside the
issues raised by the pleadings?” The obvious remedy against the
recurrence of such incidents as those complained of was the issuance of
an order requiring the owner of the vessel to maintain a fixed schedule
between its regular ports of call, wind and weather permitting; and
that the appellant so understood is clearly disclosed by his answer,
wherein he challenges the power of the Board to issue the order by
asserting his right to depart from his published schedule at will, a
challenge which he reiterated again and again during the proceedings,
and renews in his brief filed on his appeal.
If, however,
the appellant could have had any doubt or misunderstanding as to the
nature, purpose and object of the inquiry conducted by the Board prior
to the hearing, it seems to me that such doubt or misunderstanding must
have been dissipated by the course of the proceedings thereafter.
One of the shipowner’s managers, assisted by counsel, was given an
opportunity to be heard in support of the allegations of the answer,
and was thereafter subjected to an examination by a member of the Board
as to the schedule theretofore maintained by the vessel as to its
regular ports of call, as to its mode of announcing to the public the
hours of departure and arrival from the various ports of call, as to
the nature of the service rendered to the public by the vessel; and
finally, the witness was asked if he had any plan by which “the
difficulties indicated in this complaint can be avoided” and by which
he “could accommodate the business of the vessel to the necessities
of the public.” It seems to me that it must have been apparent to the
appellant and his counsel that the Board was not engaged merely in the
investigation of past failures in the performance of his duties for
which the complainant did not even pray for redress, and for which the
Board had no power to grant redress as appellant and his counsel well
knew. Appellant and his counsel must have known and did know that the
object of the inquiry was to ascertain what measures, if any, could be
adopted by the Board to require him to maintain a sailing schedule for
the steamship L. R. Yangco
of which the public would be duly advised, and which would not be
subject to arbitrary change; and the order as finally entered is
clearly within the issues raised by the pleadings, and could not have
surprised the appellant in any other sense than that it failed to
recognize his contentions, vigorously renewed in his brief on appeal,
that he had a constitutional right to run his vessel as he pleased and
to change or modify the sailing schedule at will, without regard to the
interests or the convenience of the public.
I shall not discuss at length the contention of appellant that the
evidence of record does not reasonably sustain the order of the. Board.
The undisputed testimony discloses that the vessel is licensed to
engage in the coast wise trade of the Philippine Islands; that she plies
regularly between the various ports mentioned in the order; that she
carries passengers and freight; that the published schedule of the
respondent expressly reserved the right to change the route without
previous notice to the public; that the route is occasionally changed
without notice, and that such a change was made in the particular
instance complained of, to the great inconvenience of the traveling
public. This evidence is unquestionably sufficient to “support
reasonably” an order to the appellant to establish, maintain and
publish a fixed schedule, subject to weather conditions or other
insuperable obstacles, if the Board was correct in its ruling that
the maintenance of a fixed schedule by a coasting vessel plying
regularly between certain ports of call, would subserve the public
interests better than a schedule subject to arbitrary change by the
owners without notice to the public. It is true that there is no
direct evidence in support of this ruling, but in the absence of clear
and convincing evidence to the contrary, I think that the Board cannot
be said to have acted “unreasonably” in assuming the truth of that
proposition as a matter of public knowledge, of which the Board as well
as the courts of these Islands may take judicial cognizance.
Had the Board attempted to prescribe a fixed schedule or had it
attempted to lay down specific rules and conditions for the maintenance
of a schedule, evidence would have been necessary to support its
action; but the evidence disclosing as it does that the vessel plies
regularly between the ports mentioned in the order, carrying passengers
and freight, common knowledge and experience sustains a ruling by the
Board that the public interests would be subserved by the denial of the
right asserted by the owner to make arbitrary changes in her schedule,
in the absence of positive’ proof to the contrary.
The appellant, had he so desired, might have offered evidence on
this point at the hearing or in support of a motion for
reconsideration, but no such evidence was submitted to the Board; and
in the absence of such evidence, the Board was clearly justified in
entering its order.
The truth is that the real contention of the appellant before the
Board and in this court on appeal rests upon his claim of a
constitutional right to run his vessel as he pleases without being
subjected to the interference or control of the Government of the
Philippine Islands or any of its agencies; and upon the further
contention that the Board of Public Utility Commissioners is not
clothed with power to issue such an order as that under consideration,
it matters not upon what evidence its action is predicated.
I think it is to be regretted that the majority of the court has
declined to meet and decide the real issues raised and discussed on
this appeal, and has seen fit to rest its reversal of the order of the
Board exclusively upon what seems to me to be mere technical rules of
pleading and practice applied to proceedings had before the Board. It
was never contemplated by the legislator that the proceedings had
before the Board should conform to the rigid rules prescribed in
ordinary courts of law. All that can fairly be required in this regards
is that the interested parties be given a reasonable opportunity to be
heard in any matter affecting their rights or property and that the
action of the Board be predicated upon evidence reasonably sufficient
to support it.
The real questions presented in these proceedings are of
far-reaching importance, and some of them, at least, go to the very
foundation of the modern system of public regulation of the business of
common carriers, and public utilities generally. In the language of Mr.
Friedman:
“In this great branch of our Government the law is at the threshold
of new interpretation. It is to be hoped that these laws will be
interpreted in a broad and comprehensive manner so that the working of
the commission will not be interfered with, and may result in the
greatest possible benefit.” (A Word About Commissions, Har. L. Review
XXV, 715.)
In this regard the Supreme Court of the United States has clearly
pointed the way, and in numerous decisions of that great tribunal we
find reflected the liberal and open minded attitude which should be
assumed by the courts generally in dealing with matters of public
regulation. In the recent case of German Alliance Ins. Co vs.
Lewis, decided in the October term, 1915, we find the following comment
upon a certain conservatism of mind, which it seems to me has inspired
the majority of our court in dealing with the case at bar as also in
the disposition of several other cases which have been brought before
us for the review of orders entered by the Philippine Board of Public
Utility Commissioners:
“Against that conservatism of the mind which puts to question every
new act of regulating legislation, and regards the legislation invalid
or dangerous until it has become familiar, government—state and
national—has pressed on in the general welfare; and our reports are
full of cases where in instance after instance the exercise of
regulation was resisted and yet sustained against attacks asserted to
be justified by the Constitution of the United States. The dread of the
moment having passed, no one is now heard to say that rights were
restrained or other constitutional guaranties impaired.” (German
Alliance Ins. Co. vs. Lewis, 233 U. S., 389.)
The order entered by the Board of Public Utility Commissioners in this case should be sustained.