(dissenting) .
We think the majority opinion is wrong. The very language of the two statutes first quoted in it affirms what the issuance of a certificate of public convenience and necessity so manifestly proclaims as a state policy, namely, that the holder must proceed within a reasonable time to establish and maintain the service, the showing of a need for which was an indispensable condition to his procural of the certificate. Note this language from 1953 Comp. § 64-27-12, to-wit:
“No common motor carrier authorized by this act to operate shall abandon or discontinue any service established under the provisions of this act without an order of the commission.” (Emphasis ours.)
1953 Comp. § 64-27-36 provides:
“ * * * no motor carrier shall abandon all or any portion of its service to the public, except for causes beyond its control, unless it has filed a notice with the corporation commission at least.30 days prior to the discontinuance of such service that it intends to discontinue the same * * (Emphasis ours.)
How, may we inquire, can the holder of a certificate “abandon or discontinue” a service that he has never established? Of course, he can not do so. Yet, the italicized portions of the statutes quoted manifest unmistakably a legislative purpose that immediately, certainly, within a reasonable time, he shall establish service under the certificate issued him.
' We have here a case where a non-resident certificate holder for nearly two, years after issuance of his certificate made not a single move, nor performed a single act, ’to indicate that he ever intended to' establish service under the certificate issued him. He maintained no depot or representative within the state, no office or local telephone number, solicited no business within the state, possessed neither trucks nor equipment, either licensed or maintained here, capable of hauling the type of freight he was licensed to transport. In fact, admittedly so, he did absolutely nothing under the certificate to indicate a purpose of ever establishing service under it and this condition continued for a period of approximately two years.
Finally, despairing of any action on his part under the certificate, and in order to clear its docket of “dead timber” appearing on its records, the Commission availed itself of the remedy for doing so prescribed by 1953 Comp. § 64-27-13, reading as follows :
“The commission may at any time, for good cause suspend, and upon not less than five (5) days’ notice to the grantee of any certificate or permit and an opportunity to be heard, revoke or amend any certificate or permit.” (Emphasis ours.)
Provoked into action from the Rip Van Winkle slumber he had been enjoying for the preceding biennium, the certificate holder suddenly springs into life and comes before the Commission with a multitude of promises to establish service and as recited in the majority opinion:
“He is willing even, according to his testimony, to establish termini and shops in New Mexico and to advertise and solicit business in this State if the Corporation Commission orders him to do so pursuant to its right to make such an order after investigation and hearing as provided for by § 64-27-38 and § 64-27-46, New Mexico Statutes 1953, Annotated.”
In other words, if the Commission will hold a hearing pursuant to § 64-27-38 and succeeding sections and enter an order pursuant to § 64-27-46, he will do certain acts looking to establishment of service, — things the performance of which are already called for by his certificate and which for two long years he has been delinquent in doing and which, even after service on him of the order to show cause, he has made no move to do.
The majority seem to put some reliance in affirming the trial court on 1953 Comp. § 64-27-65 which they quote on last page of their opinion. Presumably, they think the Commission’s failure to give the appellee a fixed time within which to establish service under his certificate, or suffer an automatic cancellation thereof, rendered the order unlawful or unreasonable and, therefore, void. See In re Florence Lane Case, 52 M.C.C. 427, and In re Dan Buhr and Laura Buhr, doing business as Buhr Truck Lines, 62 M.C.C. 774. The section mentioned was a part of the original act, L.1929, c. 129, § 20. The 1933 amendment, L.1933, c. 154, § 13, which is quoted, supra, as 1953 Comp. § 64-27-13, gives the Commission authority on five days’ notice in an order to show cause, following a hearing, to revoke or amend any certificate. (Emphasis ours.) It expressly repealed “such parts of chapter 129, Laws of New Mexico of 1929 * * * and all other laws * * * as are in conflict herewith.” § 64-27-1 note.
Accordingly, if under § 64-27-65, as originally enacted, the Commission was not authorized to revoke without giving a certificate holder an opportunity to cure his default, if the default were of sufficient gravity to warrant such action, it certainly was given that authority by virtue of the 1933 amendment, 1953 Comp. § 64-27-13. This section was further amended by L.1937, c. 224, § 5, in a minor respect by substituting, the word “permit” for the word “license,” wherever it occurred in the 1933 act.
The case before us is as simple as this:
(a) Respondent asked for a certificate whose issuance and acceptance constituted a promise to render service under it.
(b) Respondent never initiated service under the certificate over a two year period and resides outside the state, maintaining no agent or depot within the State.
(c) Under express authority of § 64-27-13 quoted above his certificate is subject to cancellation.
What the majority opinion says about no evidence having been introduced or offered is misleading. The Commission’s own records disclosed the appellee here (respondent before the Commission) had never established service under his certificate. For two years, he had not transported a pound of freight, nor had he ever solicited the carriage of any. Neither did he maintain any place or person within the state to whom or where anyone desiring his services might contact him. All this is admitted, so why talk about the Commission offering no evidence? If appellee’s own testimony and what the Commission’s records disclosed do not constitute evidence, we should not know in what category to place them.
Instead of finding a sympathetic reception here in its efforts to clear its docket of dead and dormant certificates, the Commission is met with a technical and unrealistic construction of the governing statutes which, undoubtedly, will render it impossible for it to keep this phase of its business current and abreast of the times. Should it again go to the legislature for authority to handle a situation such as this, the legislature might very well say to the Commission that by the 1933 amendment, 1953 Comp. § 64— 27-13, it had already given the authority requested in language so plain that he who runs may read and, now, could do no more than to reaffirm that language. We think this Court by the decision announced has practically tied the hands of the Commission in this salutary effort to compel the removal of dead and dormant certificates from its records.
Because the majority decline to hold two years’ failure to establish service under a certificate of public convenience and necessity, whether over a fixed route or otherwise, does not warrant revocation under 1953 Comp. § 64-27-13.
We dissent.