ON REHEARING January 3, 1941. 108 P.2d 850. *Page 318 OPINION Petitioner was granted a certificate of public convenience by the public service commission of Nevada. The order granting the certificate was later set aside; the present proceeding in certiorari seeks to have this order annulled. These matters are set forth more fully in Public Service Comm. v. Dist. Ct.,59 Nev. 91, 85 P.2d 70; Nevada-California Transp. Co. v. Tonopah, etc., R. Co., 60 Nev. 14, 97 P.2d 433; Nevada-California Transp. Co. v. Public Service Comm., 60 Nev. 310, 103 P.2d 43.
Following the decision in the last case cited, a rehearing was granted. In this paragraph a summary is given *Page 319 of the position taken by petitioner on the rehearing: Those desiring the setting aside of the commission's order granting petitioner a certificate of public convenience did not apply to the commission in the first instance for an order revoking said certificate, pursuant to the provisions of section 14 of the motor vehicle act, Stats. 1933, c. 165; without first making such an application, they could not maintain an action in the district court for vacating, setting aside or rescinding said order; furthermore, section 6133 N.C.L. 1929, does not authorize such an action as that brought in the district court; the entire series of proceedings from the time the district court erroneously assumed jurisdiction under color of said section is without any legal foundation, and null and void; the motor vehicle act of 1933 takes precedence over other state statutes affecting motor vehicle carriers; section 14 of the 1933 act is the only Nevada statute authorizing the commission to revoke a certificate once granted; no such provision is to be found in the public service commission act of 1919, Comp. Laws, section 6100 et seq.; neither the 1919 act nor the 1933 act authorizes a district court action for rescinding an order granting a certificate of public convenience; the commission set aside its order granting petitioner a certificate of public convenience without any notice by, or hearing before, said commission, and without good cause shown, in violation of the provisions of said section 14 of the 1933 act; the fact that petitioner was given the opportunity to be heard in the district court action does not meet the requirements of due process under the constitution, because the district court was wholly without jurisdiction to entertain that action; the words "fixing any regulations, practices or services" used in section 6133 N.C.L. 1929 cannot be stretched to include within their meaning the granting of a certificate of public convenience; the words "changed or modified," in the fifth paragraph of section 6137 N.C.L. 1929 cannot properly be interpreted as including "rescinded," or "vacated," or "set aside" within *Page 320 their meaning; in order to properly construe section 33 of the public service commission act of 1919, section 6133 N.C.L. 1929, it is necessary to read sections 25 to 33, both inclusive, of the same act, sections 6125 to 6133 N.C.L. 1929; these sections form a distinct subdivision of the act, dealing with the same subject and prescribing what is to be done, step by step, from beginning to end; said section 25, section 6125 N.C.L. 1929 furnishes the key to all that follows; the exclusive scope of complaints filed under section 25 is the rates or charges made by a public utility, or the service given; section 33 simply provides for the usual legal recourse in instances where a utility believes that it has good grounds to resist an order, affecting its rates or services, which the commission has made after the investigation and hearing provided for in section 25 and the following sections; section 33 is an appeal procedure, placed in the statute for the benefits of a utility against which an unlawful or unreasonable order might be directed by the commission; if sufficient grounds exist for rescinding such an order, its rescission is entirely reasonable; it leaves the utility where it was before; its contentions have been upheld and it has suffered no injury; but when section 33 is invoked for the purpose of rescinding a certificate already granted, the district court action, instead of protecting the rights of the party directly in interest, has an opposite effect; in this latter case the order of rescission made pursuant to such court action does not leave matters as they were before, but puts the certificate holder out of business.
1. After defendants' demurrer to plaintiffs' complaint in the district court action was overruled, defendants, of whom petitioner herein was one, applied to this court for a writ prohibiting the district court and its judge from taking any further proceedings in said action, except to dismiss the same. Public Service Commission et al. v. District Court, supra. In their brief in that proceeding, petitioners expressly stated that the *Page 321 provisions of the 1919 act authorized a district court action for the review of an order of the commission granting a certificate of public convenience. We quote from that brief: "Nowhere in the Act (of 1933) are there any provisions made for a review of the Commission's action in granting the certificate of convenience and necessity as is contained in section 36 1/2 of the Public Utility Act (sec. 6137 N.C.L. 1929)." Again, in the same brief: "There is no provision in the Public Utility Act for the revocation of the certificate of convenience and necessity by the Commission, but there is the provision with reference to appealing to the courts from `every order refusing or granting any certificates of public convenience' (sec. 6137 N.C.L. 1929)." Petitioner is in no position to complain of this court's action in accepting these statements when considering the prohibition proceeding. In that proceeding the position taken by the petitioners was not that there are no provisions in the public utility act of 1919 authorizing a review by the district court of an order of the commission granting a certificate of public convenience, but that said provisions have no application to motor vehicle carriers because they were superseded as to that kind of carriers by the motor vehicle act of 1933. We observe further that petitioners in that case did not contend, as petitioner does in the instant certiorari proceeding, that it was necessary for plaintiffs in the district court action to apply in the first instance to the commission for an order revoking petitioner's certificate before resorting to any court action. It will thus be seen that in two important particulars petitioner in the pending proceeding has changed its position from that taken in the prohibition case.
Section 14 of the motor vehicle act of 1933 authorizes any person aggrieved by an order of the commission revoking a certificate of public convenience to commence an action in the district court for vacating and setting aside such order. No such right is given to any *Page 322 person aggrieved by an order of the commission refusing to revoke such a permit. In the prohibition case, Public Service Commission v. District Court, supra, it was held that the legislature, in authorizing a district court action by a person aggrieved by an order of the commission revoking a certificate of public convenience, was simply protecting such person against any unlawful or unreasonable order of revocation. It was further held in that case that the provisions of section 33 of the public service commission act of 1919, section 6133 N.C.L. 1929, were not superseded by the motor vehicle act of 1933.
No petition for rehearing was filed in the prohibition case; instead, defendants in the district court action (petitioners in the prohibition proceeding) filed their answer and went to trial. As the result of that trial, the order heretofore made granting petitioner a certificate of public convenience was set aside by the commission, and the district court action dismissed on application of the plaintiffs pursuant to paragraph (c) of said section 33 of the public service commission act of 1919, section 6133 N.C.L. 1929. An appeal was taken to this court from the judgment of dismissal, but the appeal was dismissed. Nevada-California Transp. Co. v. Tonopah, etc., R. Co., supra. Thereupon the instant proceeding in certiorari was instituted, based upon petitioner's contention that the commission had exceeded its jurisdiction and had not regularly pursued its authority in setting aside its previous order granting petitioner a certificate of public convenience. In asking this court to annul the order of the commission setting aside its previous order granting the certificate of public convenience, petitioner is asking the court to reverse its decision in the prohibition case, because its contention that the commission's order was null and void is based upon the proposition that the district court was wholly without jurisdiction of the action commenced in that court to set aside the order granting the certificate. *Page 323 2. The points determined in the prohibition case should not be unsettled except for very weighty and conclusive reasons. Maitia v. Allied L. L.S. Co., 49 Nev. 451, 461, 248 P. 893; Evans v. Cook, 11 Nev. 69. The situation here, though not the same, is similar in principle to that in Barrett v. Franke,48 Nev. 175, 177, 228 P. 306, and in Bottini v. Mongolo, 45 Nev. 252,254, 255, 200 P. 451.
3. We do not hold that the decision in the prohibition case absolutely deprives this court of jurisdiction or power to reverse the rulings in that case in the proceeding at bar. If the court were convinced that its ruling in the prohibition case was clearly and palpably erroneous, and that the decisions in that case and the present one were inconsistent and unjust, it would be our duty to correct rather than perpetuate the errors. Not being so convinced, the court should not disregard the salutary rule of stare decisis. This is particularly true here, where the parties are for the most part the same and the litigation has arisen out of practically the same facts. It is true that, in the present proceeding, it is sought to annul an order of the public service commission, while in the prohibition case the purpose of the proceeding was to prevent the district court from going any further with the action commenced in that court by petitioner's opponents; but the alleged invalidity of the commission's order sought to be nullified is based upon the same contention as that in the prohibition case, namely, that the district court was without any jurisdiction whatever of the action to set aside the commission's order granting petitioner's certificate.
4. Certiorari is not granted as a matter of right, but in the sound discretion of the court. Nevada Lincoln Co. v. Dist. Ct., 43 Nev. 396, 402, 187 P. 1006. In the prohibition case the petitioner took a certain position. After the decision in that case, and after failing to file a petition for a rehearing therein and answering and going to trial in the district court action, petitioner now comes into this court in the instant proceeding *Page 324 taking a position materially different from that in the prohibition case.
In view of what has been said it would not, in our opinion, be the exercise of a sound discretion to grant petitioner's prayer in this proceeding. It is, therefore, again ordered and adjudged that the writ be denied.