Mt. Konocti Light & Power Co. v. Thelen

ANGELLOTTI, C. J.

Application for a writ of

certiorari.

The proceeding before the railroad commission which it is sought here to review was one by the Mt. Konocti Light and Power Company, petitioner here, against James A. Gunp, Jr., complaining that Gunn was constructing his hydro-electric system from Kelseyville, Lake County, to the village of Pinley, in the same county, the last named village being territory not theretofore served by him, but already occupied by the power company, and was about to enter into competition with it there, and asking for an order restraining Gunn from so doing. It is assumed he had no certificate of public eonveni

[470]

ence and necessity from the railroad commission authorizing him to make such extension of his system. (Public Utilities Act, sec. 50.) By his answer Gunn denied certain allegations of the complaint and set up his right to do as he was doing by reason of a franchise granted by the supervisors of Lake County, under which he had commenced to do business before the effective date of the Public Utilities Act.

The commission first made an order restraining Gunn as asked, but on his application for a rehearing, which, according to the petition here, was heard by the commission at a time and place fixed by it, and finally submitted to it for decision on February 18, 1915, vacated and annulled this order and dismissed the power company’s complaint on May 5, 1915. This action was had on the theory that the commission had no power to prevent Gunn from exercising the franchise given him by the supervisors of Lake County.

The power company seeks from this court a writ of

certiorari

to review the proceedings of the railroad commission, with a view to the annulment of the second order of the commission, the order vacating the first order and dismissing the complaint.

1. It sufficiently appears from the petition and exhibits attached thereto that there was a hearing on the application for rehearing at a time and place fixed by the commission, that the matter was finally submitted to the commission for decision and that such submission involved the determination of the rights of the respective parties on the merits of the controversy in the event that the commission concluded that its original decision was erroneous. Under the circumstances no further hearing was essential or apparently desired. While in view of the language of the statute we might doubt the power of the commission, if it grants an application for rehearing without an opportunity of a hearing to the adverse party, to make any change in the order already made without an opportunity to such party to be heard on the rehearing so granted at a time and place fixed, we are satisfied that upon the showing made here, there was in the case at bar no substantial departure from the procedure provided by the- act, no departure affecting any substantial right or beyond the power of the commission. There was, in effect, a hearing on the “rehearing.”