A. L. AMMEN TRANSPORTATION CO., INC., PETITIONER AND APPELLANT, VS. MARIA DE MARGALLO, OBJECTOR AND APPELLEE.

It appears that the application of the Ammen Transportation Company
for a certificate of public convenience was filed on February 10, 1926.
That a hearing was had on February 16, 1927, and the decision granting
the certificate was rendered on April 30, 1927.

That the original application of Maria de Margallo for the
certificate was filed September 23, 1926, upon which a hearing Was had
March 14, 1928, and the decision granting her certificate was rendered
on June 11, 1929. That in the Lotivio case, the application for the
certificate was filed October 23, 1926, upon which a hearing was had
January 12, 1927, and the decision granting the certificate was
rendered on April 19, 1927. That is to say, that Lotivio was granted
his certificate more than two years before Maria de Margallo was
granted her certificate. It also appears that the petition for the
approval of the sale which Lotivio made to the Ammen Transportation
Company of his certificate was presented to the commission on March 29,
1927, and approved by it on April 19, 1927. It thus appears that the
certificate of the Ammen Transportation Company was prior in time, both
as to the filing of the application and the granting of the
certificate. That Maria de Margallo’s application was filed one month
before the Lotivio’s filing was made, but the decision granting the
Lotivio certificate was rendered on April 19, 1927, and the certificate
was granted to Maria de Margallo on June 11, 1929.

The record is conclusive that after a hearing in case No. 8859, the
commission granted the certificate of public convenience to the Ammen
Transportation Company to operate an auto-truck service between Legaspi
and Banquerohan, which is over the same route and about 40 per cent of
the distance from Legaspi to Manito, and there’ is no claim or pretense
that any complaint or criticism was made by the public of the service
which it rendered between Legaspi and Banquerohan. In fact it appears
from the record that the Ammen Transportation Company on its own motion
and to meet the growing demands of the public, applied to the
commission for a half hour schedule between those points. That is to
say, it is an undisputed fact that the Ammen Transportation Company
made the first application and was granted the first license, and for
aught that appears in the record, it was rendering good and efficient
service without any complaint or criticism from the public, and that on
its own motion and to make the service more efficient, it applied for
a half hour schedule, from which it must follow that as to Maria de
Margallo, it was prior in both time and right between Legaspi and
Banquerohan, and that in all things and respects, the legal rights of
the Ammen Transportation Company come within the law laid down by this
court in the cases of Batangas Transportation Co. vs. Orlanes (52
Phil,, 455), and Javier vs. Orlanes (53 Phil., 468); from which it must
follow that all of that portion of the decision of the commission which
grants a certificate of public convenience to Maria de Margallo to
operate an autobus line between Legaspi and Banquerohan must be
revoked, for the reason that it is in conflict with those decisions,
and for want of any evidence to sustain it, and that the application of
the Ammen Transportation Company for a half hour schedule between those
points should be granted.

The record presents a very novel situation. The application of
Maria de Margallo to operate between Legaspi and Manito was filed on
September 23, 1926, and that of Lotivio over the same route was filed
on October 23, 1926, upon which a hearing was had January 12, 1927, and
a certificate was granted to him on April 19, 1927. But strange as it
may seem, Maria de Margallo with a prior application, for some unknown
reason, was not notified and was not a party to that hearing. Yet it
appears from the record of the commission that her application over the
same route was prior to that of Lotivio. For want of such notice, any
decision rendered in the Lotivio case was not legally binding on Maria
de Margallo, and any rights which the Ammen Transportation Company
acquired from the purchase of the Lotivio certificate would be subject
to any right which Maria de Margallo may have acquired by her prior
application to that of Lotivio. In addition to that, it appears that
one member of the commission at a former hearing refused to grant a
certificate to Maria de Margallo, for the simple reason that the road
was not then constructed, and that another member of the commission
granted a certificate to Lotivio over a road which was not then
constructed. The application of Maria de Margallo being prior to that
of Lotivio, it is hard to conceive how she could be divested of her
rights by the granting of the certificate by the commission in the
Lotivio case, of which she did not have any notice, and to which she
was not a party, and, in particular, because the hearing on her
application was delayed and postponed by one commissioner, because the
road was not then constructed, and another commissioner granted Lotivio
his certificate over a road which was not then constructed.

It may well be doubted Whether the Public Service Commission
should, or that it has any legal right to, grant a certificate of
public convenience over a proposed road “which has not been
constructed. The granting of such a certificate presupposes that it is
granted for the use and benefit and convenience of the travelling
public, and if the route over which the certificate is granted is
nothing more than a proposed road, which has not been constructed, and
hence cannot be used or travelled by the public, how then can it be
claimed or asserted that the certificate was granted for the
convenience of the public? Be that as it may, it must be conceded that
the commission has the power to grant a certificate of public
convenience for any portion of a proposed road when and as soon as such
portion to any given point is constructed and ready for use. It must
also be conceded that everything else being equal, the commission has
more or less discretion in deciding as to whom the certificate shall
issue, having in mind the ability and equipment of the applicant to
render the best and most efficient service to the public.

In the pending case based upon the undisputed facts, we hold that
based upon its prior application and the services which it has since
rendered, the Ammen Transportation Company is both prior in time and
right to operate between Legaspi and Banquerohan, for which it should
have a corresponding certificate. Its application was filed February
10, 1926, in which it was expressly stated that “As soon as the road
between Jomapon and Banquerohan is completed, the hours of departure
from Banquerohan shall be the same hours of departure from Jomapon,
prescribed in this itinerary,” and it further appears that since the
granting of its certificate, it has been rendering good and efficient
service over the route as fast and as soon as the road has been
constructed.

As between Banquerohan and Manito or intervening points, the court
is not disposed to define the legal rights of either party, for the
simple reason that the road between those points is nothing but a
proposed road which has never been constructed, and which for many
years may not be constructed, to which we might add that any rights
which Maria de Margallo may have acquired by virtue of her prior filing
to operate over the road between Banquerohan and Manito, when
constructed or any portion of it, were not divested by the granting of
the certificate to Lotivio, to which she was not a party and of which
she did not have any notice.

The decision of the commission is reversed, arid based upon its
original application, an exclusive certificate of public convenience
should be issued to the Ammen Transportation Company to operate between
Legaspi and Banquerohan, so long as it shall render good and efficient
service and meet the reasonable demands of the public, but in so far as
the legal rights of the parties are not defined, and for the reasons
stated, the court is not disposed to otherwise define the legal rights
of either party for a certificate of public convenience to operate
between Banquerohan and Manito. Neither party to recover costs on this
appeal. So ordered.

Johnson, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.