ELPIDIO JAVELLANA, PETITIONER, VS. LA PAZ ICE PLANT & COLD STORAGE CO., INC., AND THE PUBLIC SERVICE COMMISSION, RESPONDENTS.

This is a petition filed by Elpidio
Javellana praying that the secretary of the Public Service Commission
be ordered to certify and forward to this court for review all the
records of cases Nos. 11282, 45123, 46741, and 46831 of the Public
Service Commission, and that judgment later be rendered declaring null
and void the order of said Public Service Commission dated April 9,
1937, issued in case No. 46831, for being inofficious and illegal.

The respondent La Paz Ice Plant & Cold Storage Co., Inc., was
the holder of a certificate of public convenience issued by the other
respondent Public Service Commission in case No. 11282 of said
commission, to maintain and operate in the Province of Iloilo an ice
plant capable of producing 10 tons of ice daily (Annex A of the motion
for reconsideration Annex B).

The petitioner, Elpidio Javellana, is the holder of a certificate
of public convenience authorized to maintain and operate in the same
Province of Iloilo an ice plant capable of producing 10 tons of ice
daily. Said petitioner later obtained authority, in case No. 46741 of
the Public Service Commission, to increase the productive capacity of
his ice plant and the production thereof to 30 tons of ice daily.

In case No. 23573 of said commission, the respondent La Paz Ice
Plant & Cold Storage Co., Inc., was likewise authorized, in an
order of June 6, 1930 (Exhibit 1), to install an additional 80 H. P.
Blackstone Engine to be operated in accordance with the conditions
imposed in the certificate of public convenience issued in its favor in
the above-stated case No. 11282. Said respondent, however, installed a
130 H. P. Fairbanks-Morse Diesel Engine in place of said machinery,
thereby increasing its production to 30 tons of ice daily from the year
1930, without having previously obtained authority therefor from the
Public Service Commission (Record No. 46831, page 21).

On October 8, 1936, said respondent La Paz Ice Plant & Cold
Storage Co., Inc., in case No. 46831 of the Public Service Commission,
applied for the approval of its said petition to increase production to
30 tons of ice daily, and of another petition for authority to further
extend the capacity of its machinery for the purpose of producing 20
tons more, thereby increasing its total daily production to 50 tons of
ice. This petition was opposed by the herein petitioner Elpidio
Javellana, alleging that such practice of increasing production before
obtaining the approval thereof should not be sanctioned, and that said
respondent should not produce more than 10 tons of ice daily inasmuch
as the needs of the consuming public could be satisfied by all the
operators authorized to supply said commodity (Record No. 46831, pages
23 and 31).

While said motion was pending decision by the Public Service
Commission, the herein respondent La Paz Ice Plant & Cold Storage
Co., Inc., began to install another unit in its machinery, consisting
of a 200 H. P. Deutz Diesel Engine. In view thereof, the herein
petitioner Elpidio Javellana, on February 13, 1937, filed a complaint
with the Public Service Commission, in case No. 48426, praying for the
suspension of the installation in question as well as for the cessation
of the operation of the other two units, that is, a Blackstone Engine
38-42 H. P. with one 7 1/2 X 71/2 York Ammonia Compressor and 130 H. P.
Fairbanks-Morse Diesel Engine direct coupled to a 10 X 10 York Ammonia
Compressor which according to said complaint, had been installed and
operated without due authority.

On February 16, 1937, the Public Service Commission sent its
engineer Teodoro Bacani to Iloilo to inspect the plant of the
respondent corporation and to investigate whether the charges filed in
the complaint were true or not. After the report of said engineer had
been submitted (Record No. 48426, page 39), the Public Service
Commission, in an order of February 19, 1937, ordered the respondent La
Paz Ice Plant & Cold Storage Co., Inc., to cease the operation of
the two units in question, to suspend the installation of the fourth
unit above-stated, and to limit its production to 10 tons of ice daily,
stating the production of a larger quantity was in violation of the
condition imposed in its certificate of public convenience. As a result
of said order, only one unit of its machinery, that is, the 40 H. P.
Fairbanks-Morse crude oil engine connected with a York-Two cylinder 7
1/2 X 7 1/2 compressor labeled as of 7 tons ice making capacity, which
is the only machine authorized in its above-stated certificate issued
in case No. 11282 (see case No. 48426 of the Commission, pages 13-15).

A motion for the reconsideration having been filed by the herein
respondent La Paz. Ice Plant & Cold Storage Co., Inc., the Public
Service Commission, in order to decide the case on its merits, set the
hearing of the complaint for a date not specified in its order of
February 25, 1937. In the meantime, however, considering the petition
of several customers and believing it to be of public necessity and
convenience, the Public Service Commission issued an order dated
February 26, 1937, setting aside its order of the 19th of said month
and year and authorizing said respondent corporation to resume its
former operation (Record No. 48426 of the Commission, pages 33 to 35).

Meanwhile, said application of the respondent La Paz Ice Plant
& Cold Storage Co., Inc., in the above-stated case No. 46831 of the
Public Service Commission, was set for hearing on April 8, 1937. After
the presentation of the evidence and pending the filing by both parties
of their respective memoranda, the herein respondent Public Service
Commission, on April 9, 1937, issued an order (Exhibit A), the
pertinent part of which reads as follows:

“The Commission considers that public service cases
are partly commercial in nature, not purely judicial, and therefore the
time factor should be taken into account. It having been alleged by the
petitioner that the harm it would suffer, should this case be not
decided immediately by this Commission, consists in that it would yet
have to continue operating the old machinery without being able to
produce even the 30 tons already authorized, the petitioner is hereby
authorized to replace the old machinery with the new one, but, until
this case is decided by the Commission, it should produce only the 30
tons so far authorized.”

On April 27, 1937, the herein petitioner Elpidio Javellana filed a
motion for reconsideration of said order, alleging that the, allegation
contained therein to the effect that the La Paz Ice Plant & Cold
Storage Co., Inc., had been authorized to produce 30 tons of ice daily
is not true, and that said order was in conflict with the mandate in a
writ of preliminary injunction issued by the Court of First Instance of
Iloilo in civil case No. 10722, entitled “Elpidio Javellana vs.
La Paz Ice Plant & Cold Storage Co., Inc.” and addressed to the
therein defendant, commanding it to refrain, until further orders, from
operating new units in its plant, outside that authorized in its
certificate of public convenience, and from producing more than 10 tons
of ice daily, which is the only amount authorized in its certificate in
question (Record No. 46831, page 350).

The respondent Public Service Commission, in an order of May 3,
1937, denied said motion for reconsideration on the ground that as the
La Paz Ice Plant & Cold Storage Co., Inc., had been authorized in
case No. 23573 to install new machinery “in order to increase its
productive capacity, it clearly appears that productive capacity of 10
tons originally granted to the predecessor thereof in case No. 11282,
“has been increased” (Record No. 46831, pages 351, 352).

Although the petitioner calls his petition a petition for review,
it will be treated by this .court as a petition for certiorari inasmuch
as it does not seek the reversal but the annulment of an order
authorizing the corporation La Paz Ice Plant & Cold Storage Co.,
Inc., to increase its ice production to 30 tons daily, the latter not
having a certificate of public convenience therefor, which is the same
as saying that the respondent commission exceeded its jurisdiction and
abused its discretion.

In the case of Barredo vs. Public Service Commission (58
Phil., 79), it was stated that the action of the Public Service
Commission in granting the special or provisional permits referred to
therein was not only not authorized by their organic law but forbidden
by the requirement to take evidence before issuing such permits. In
said case no hearing on the merits was had and no evidence was
presented, while in this ease there was hearing on the merits and both
parties presented evidence for and against the application to increase
productive capacity and production filed by the respondent. The case
could not be decided immediately because the parties asked for time to
file memoranda. Inasmuch as the convenience and necessity of the
ice-consuming public demanded the prompt decision thereof, the Public
Service Commission was compelled to issue the order in question.
Section 16, paragraph (h), of Commonwealth Act No. 146,
approved on November 7, 1936, authorizes the Public Service Commission,
upon proper notice and hearing, to require any public service to
establish, construct, maintain, and operate any reasonable extension of
its existing facilities, where, in the judgment of said commission,
such extension is reasonable and (practicable and will furnish
sufficient business to justify the construction and maintenance of the
same, and when the financial condition of the said public service
reasonably warrants the original expenditure required in making and
operating such extension. Therefore, the Public Service Commission has
ample powers to require and authorize public services with certificates
of public convenience to extend their service when the necessity of the
public affected so demands.

Although the order, the annulment of which is sought, is
provisional in nature, as it had been issued, for the purpose of
remedying an urgent public necessity, in a case wherein the extension
of an already existing certificate is asked for and after the
interested parties had presented their respective evidence, said order
is legal and valid and the respondent commission acted within the scope
of its discretionary powers in issuing it.

For the foregoing considerations, this court is of the opinion and
so holds that when an ice-producing company applies for permission to
extend the productive capacity of its machinery and to increase its
production, and the necessity of the ice-consuming public urgently
demands the approval of said application, the Public Service
Commission, after due hearing and presentation of evidence, may
provisionally authorize the extension applied for, when it cannot
decide the case within the shortest time possible, and in doing so does
not exceed its jurisdiction.

Wherefore, the remedy applied for is denied, with costs to the petitioner. So ordered.

Avancena, C. J., Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.