Alers v. Superior Court of Puerto Rico

Mr. Justice Santana Becerra,

dissenting.

On August 19, 1955, Miguel Alers appeared before the Public Service Commission urging the approval of the transfer, for reasons of health, to his brother Juan Alers of five ■certificates of necessity and public convenience, four of which serviced the Loiza-Carolina route and the Boca de Cangrejos-San Juan route via Fernández Juncos. Juan Alers died shortly thereafter. After several proceedings and hearings, the Commission treated the case as an original application for a franchise to operate on those routes. Finally, *684on December 11, 1957 it entered an order refusing definitively the transfer requested on the following grounds:

“In view of the circumstances of this case as well as the evidence offered by both parties, the Commission is of the opinion that in disposing of the case it is necessary to consider, in addition to the existence or nonexistence of public convenience and necessity, the evidence offered by the opposing party on petitioner’s action in connection with the chauffeurs’ social security laws in force and the mandatory decrees of the Minimum Wage Board. An analysis of the evidence discloses that petitioner’s actions prior to the filing of his application are in. contravention of the provisions of the Chauffeurs’ Social Security Act and mandatory decrees, a legislation having such a high social scope that compliance therewith should not be evaded by any public carrier, since in any grant made by this. Commission it is the duty of the grantee not only to comply with our regulations, but also with any other laws enacted by the Commonwealth of Puerto Rico.
“Regarding the necessity and convenience of the service, the evidence was entirely conflicting. While the petitioner attempted to justify such convenience and necessity by his witnesses, the opposing party attempted to show by its evidence that at present the means of transportation along the Loiza-Carolina route is adequately serviced.”

The San Juan Part of the Superior Court confirmed the order and the case reached this Court.

I have nothing to oppose to the view stated in general terms by my brothers of the Division in the sense that, “Irrespective of the decisions of other jurisdictions in that respect, it seems that the Commission under its power to regulate public transportation not only can, but should, take-into consideration the fitness of those seeking to perform a. public service regulated by the Commission.” However, as is always the case with the general principles, the difficulty arises when we are compelled to confront specific situations. We have before us a specific case.

The problem presented is more serious than it seems at first blush. The orders of the Commission must be “in con*685formity with law.” Sections 83 and 85, Act No. 70 of 1917 (Sess. Laws, p. 432). Up to what point may the Public Service Commission, not within its general quasi rule-making power, but within its quasi-judicial function of adjudicating the rights of a petitioner, sanction, in the absence of a provision of law, the noncompliance with other laws and refuse a grant to which there would otherwise be a right — other than those cases in which the noncompliance would cover things which are substantially comprised in the grant itself as, for example, the public security in the case of a carrier — is the basic problem confronted in this case. The lawmaker has at times provided that the nonobservanee of the law shall have effect in other areas, and of this we have numerous situations.1

At the present time in which practically every type of enterprise and economic activity is closely supervised by regulations of law in its different phases of relation, the concept of fitness acquires a broad meaning. What is accepted as good in this case of a carrier could arise in connection with any other type of business or by reason of any other modality of nonobservance. Could a franchise be refused to an enterprise on the ground that it has been charged with or found guilty of nonpayment of taxes or some other similar violation? Could a franchise for a water connection be refused to a sugar mill, for example, because it has failed to comply with the Sugar Act with respect to the due payment to its colonos or otherwise, or which in some way has failed to observe the provisions of the Employment Security Act in that industry? Could it be refused because the petitioning enterprise is or has been charged with unfair labor *686practices before the Labor Relations Board; or because it has been charged with or found guilty of not paying minimum wages, etc., in its other relations subject to regulation? I am in no position to give a categorical answer, nor is there any need at this time, because, even in the position of law taken by the Commission, its decision, in my opinion, is not reasonable nor in conformity with law on the face of the record. However, it does not escape my mind that the matter may have at least, once it is sanctioned today, consequences with which we shall have to cope in the future.

In view of the petition for transfer of the five certificates, the Commission ordered its attorney to make a study of the records, it appearing from the report submitted on August 10, 1956 and from the attorney’s testimony given at a subsequent hearing that the situation of such records was very confusing, the certificates had expired since 1947 and 1949, and that only two, which had been transferred to Juan Alers, and two vehicles had been operating recently. In fact, to the petition there was attached copy of two public-omnibus licenses for 1955-1956 issued by the Secretary of Public Works in the name of Juan Alers. In view of the report, on September 5, 1956 the Commission ordered that a second hearing be held and that notice of the petition be served on other carriers for the purpose of determining whether the transfers requested should be approved and the service resumed thereunder. “La Cubanita Autobus Co., Inc.” filed a written opposition alleging, among other things, that the vehicles which the petitioner claimed were his had been withdrawn, that only one was operating irregularly and unsafely, that the service was suspended frequently for different reasons ; that the vehicles did not belong to Juan Alers, but were operated by the petitioner, and that in view of their wretched condition and other reasons the Commission should cancel definitively the said certificates. At a hearing held on October 3, 1956, at which the presiding commissioner stated *687that the petitioner should prove that those buses had always belonged to him, although they appeared in the name of Juan Alers, and the necessity and convenience of the service, the petitioner admitted those facts in his testimony.

On October 17, 1956, subsequent to the aforesaid hearing, the Commission ordered its Inspection Bureau to make a study of the passenger movement on the Loiza-Carolina route. The three inspectors who made the study submitted a report on December 5, 1956 recommending, for reasons of necessity of the service, the approval of the petition for transfer and the restoration of those authorizations which were being used recently. On January 17, 1957, the Commission issued an order concluding that there was public necessity and convenience and that it should authorize more means of transportation by bus on the said route, and granting to the petitioner, “who is an old carrier with great experience in this service,” a three-year franchise to operate three buses on the Loiza-Carolina route. It granted him 15 days to submit time schedules and rates under which he would operate, and that the franchise would be drawn up and submitted to the Governor after such schedules were submitted.

On February 5, 1957, the petitioner submitted the time schedules and rates. On February 8, 1957, carrier “La Cu-banita Autobus Co., Inc.” applied for a rehearing alleging that it had not had an opportunity to read the Inspection Bureau’s report and that the grant was contrary to law. A rehearing was set on March 6, 1957.2

The last hearing was held on March 27, 1957, at which abundant evidence was produced by either party on the necessity and convenience of the service applied for. The *688entire proceeding was commenced and treated as a proceeding for the transfer of the certificates already issued. However, in the course of the hearing the Chairman of the Commission stated that the case was being treated as an original petition of necessity and convenience. The opposing party, “La Cubanita Autobus Co., Inc.,” called to the witness stand the inspector of the Chauffeurs’ Social Security Bureau, who testified that since 1953 he had approached the petitioner and his brother Juan Alers in connection with the chauffeurs’ social security, requiring of one as well of the other compliance with the Act of 1950 establishing such security, and that neither of them had complied; that according to a list furnished to him by the Commission in 1950, it appeared that the petitioner owned five permits and that he never contributed for the chauffeurs employed by him. That when he decided to resort to the courts, Miguel Alers had told him that he never operated buses and that they were his brother’s property. On the other hand, Juan Alers informed the witness that the buses belonged to the petitioner; that as a result of a certain family transaction, they had appeared before the Commission and transferred the buses and that he was not bound to comply with such requirement of law. The witness submitted a report to the Social Security Bureau, an investigation was conducted and it was found that Miguel Alers had transferred the certificates, and an action was brought in the Superior Court against Juan Alers to compel compliance with the law. At the death of Juan Alers the case was pending before the court to be prosecuted against the heirs. The witness further testified that the Commission evidently had issued five permits to Miguel Alers, who did not comply with the law until a chauffeur told him in October 1956 that Juan Alers had employed him to operate a bus, and that the petitioner informed him that in order to avoid a suit, since his brother already had a case in court, he was going to fill up his income and pay the amount *689corresponding to the two chauffeurs whom he mentioned. At this point of the examination, the Chairman of the Commission intervened and explained to the witness that according to the report the petitioner had operated two buses from 1946 to 1950 and later got rid of the vehicles, and that as of 1950 the buses appeared in the name of Juan Alers. As respects wages, a witness mentioned three cases, one against the petitioner, another against the brother, and the other against both of them, involving, according to his weak recollection, vacation and overtime under Decree No. 12. He said that judgment was entered in one of them against the petitioner.

Not long ago the Court voiced an unequivocal opinion on the freedom of the Public Service Commission to make its decisions, which should not be disturbed unless they are not reasonable, are not in conformity with law, and are based on incompetent evidence. Public Serv. Comm’n v. Metro Taxicabs, 82 P.R.R. 967 (1961). Apart from changing the nature of the proceedings, the Commission, in my opinion, merely imposed on the petitioner a specific sanction for the alleged noncompliance — particularly since the question of noncompliance was sub judice before a court at that time— with another act which prescribes its own sanctions and on things which, as I pointed out, are not consubstantial with the franchise itself such as would be an insurance on the equipment or security measures. There are judicial protections regarding this aspect.3 Nor do I believe that the Com*690mission’s refusal would be reasonable because of the fear or suspicion of not having any guarantees that the petitioner would comply with its orders. In addition to the fact that this amounts to assuming in advance the violation of the order as a factor of the decision, the Commission has adequate sanctions for noncompliance with its orders.

The trial court did not in fact base its judgment on the considerations stated by the Commission. It stated that the latter had specifically concluded that the evidence was conflicting as to the necessity and convenience of the service, and that the subsequent denial of the petition and revocation of the certificate issued was tantamount — the court concluded — “to resolving the conflict in the evidence adversely to the appellant.” It then assumed that what the Commission said did not render the order void. The difficulty in the inference drawn by the trial court lies in the fact that the Commission refused to grant the franchise expressing certain views, and, on the contrary, refrained from making any conclusion on the necessity and convenience of the service on which hinged almost the entire evidence. Hence, if the actual situation and true reason for the decision could have been the inference drawn by the trial court, the case should be remanded to the Commission to make the pertinent conclusions on the necessity and convenience.

I must not close without saying that Act No. 85 of June 14, 1960 (Sess. Laws, p. 151) amended § 10 of Act No. 428 of 1950 (Sess. Laws, p. 1038), in the sense that “the cases where enterprises engaged in public transportation service have been sentenced for noncompliance with the obligation to pay the assessment required by law shall be reported to the Public Service Commission of Puerto Rico for its consideration when such enterprises appear before it in proceedings related to their certificates of necessity and convenience.”

*691Even though the purpose of that amendment were applied to a decision made two and one-half years ago prior to its adoption, the fact remains that the lawmaker prescribed the reasonable condition, and also the safeguard, that the enterprise must have been sentenced for noncompliance.

For the foregoing reasons, I must dissent.

It appears from the record that on March 19, 1967, Salvador Caro,. Executive Director of the Port Authority, sent a letter to the Chairman of the Commission informing him, in addition to other facts, that there did not exist a real necessity for the service which the petitioner proposed to offer. This letter evidently was not otified to the petitioner, nor did the Port Authority appear at the hearing to oppose.

Section 9 of Act No. 428 of 1950 (Sess. Laws, p. 1038), establishing the chauffeurs’ social security, as it read in December 1957, imposes on the employer the duty to pay and withhold, etc. An employer who has failed to pay the assessments may be sued for the amount of the benefits awarded to the chauffeur plus an equal sum by way of penalty. According to § 10, as it read, the Secretary of Labor shall have the right to recover from the employer the assessments which he has failed to pay plus an equal sum by way of damages, etc. Section 13 declares that the noncompliance with that Act or its regulations shall be deemed to be a misdemeanor punishable by a maximum fine of $1,000, imprisonment in jail for one year, or by both.