[ G.R. No. 11203. January 23, 1917 ] 36 Phil. 116
[ G.R. No. 11203. January 23, 1917 ]
T. R. YANGCO, PETITIONER, VS. THE BORAD OF PUBLIC UTILITY COMMISSIONERS, RESPONDENT. D E C I S I O N
MORELAND, J.:
On the 3d day of July, 1915, A. H. Sjovall, district engineer of Capiz, sent the following communication to the Board of Public Utility Commissioners:
“Gentlemen: I have the honor to enter complaint against the owners of the S. S. L. R. Yangco on the grounds of (1) failure to follow out sailing schedule as specifically advertised and (2) failure to duly notify the public at the port of Capiz of the change in routing.
“Specifications follow. On June 22, 1915, the master of the steamship L. R. Yangco advised Mr. Jose Lara, post- master, Capiz, by wire from Manila that his steamer would arrive in Capiz at 8 o’clock a. m. on Friday (June 25) and that she would sail for New Washington at 8 o’clock p. m. of the same day. This information came in accordance with the established practice of the master of the vessel in question. Advices so furnished are primarily for the purpose of enabling the local post office to dispatch mail on the steamer. Out of courtesy and for the convenience of the public and local Government officials Mr. Lara posts these advices on the bulletin board in the provincial government building. The telegram in question was posted in like manner on the day received, and was noted by this office.
“The undersigned and Mr. D. E. Henry, senior supervising engineer, Bureau of Public Works, desired to go to New Washington. Upon the publication of the advice from the master of the vessel that she would sail for New Washington on the evening of the 25th we made our plans to sail on the steamship L. R. Yangco.
“Upon arrival of the steamer at Capiz it was announced that she had just arrived from New Washington and would sail the same evening for Manila via Romblon and would not touch at New Washington. In the meantime no further advices had been received in Capiz concerning the change in routing in spite of the fact that the steamer had touched at no less than two ports from which notice could have been telegraphed to Capiz, namely Romblon and New Washington.
“The undersigned and Mr. Henry were then obliged to hire a launch to make the trip to New Washington at a cost of P30. Regular commercial transportation would have cost but P4.20.
“Had the advertised schedule been followed we would have sailed on the steamship L. R. Yangco, Had no information been received we would have sailed on the launch early in the morning of June 24, thus avoiding a delay of more than one and one-half days.
“I enclose for your information a certified copy of the telegram received by Mr. Lara from master of the steamship L. R. Yangco on June 22.
“The undersigned requests that the owner and master of the steamship L. R. Yangco be restrained from giving out unreliable information which deceives the public and causes undue annoyance, expense and delay.”
The telegram referred to is as follows:
“Jose Lara, Capiz.
“L. R. Yangco would arrive there Friday eight morning would sail same day eight night for New Washington.
“Blanco.”
Upon receipt of this communication the Board served the following notice and order upon the respondent company:
“You are hereby required to answer the complaint of the complainant herein, copy of which is hereto attached and herewith served upon you, within 10 days from the date of this order.”
In response to this notice and .order the respondent company answered admitting the sending of the telegram above set out but alleging “that this notice was given merely as a matter of accommodation to the post-office authorities and was not intended to be used as a notice to the public.”
The answer then alleges that “the Government of the Philippine Islands, does not pay respondent anything for the carriage of the mails and that this service is rendered voluntarily, as a matter of mere accommodation to the people of the places in which respondent’s steamers touch;” and further alleges, “that respondent does not undertake to maintain any fixed schedule of arrivals and departures for the steamer Luis R. Yangco.”
Respondent also sets out by way of defense “that upon the arrival of the steamship Luis R. Yangco at Capiz on June 25 last, at shortly after 9 a. m., the captain of the vessel decided that it would be more advantageous for commercial reasons, to give up the proposed trip to New Washington, and return to Manila by way of Boac and Romblon and thereupon about 9.30 a. m. on the same day, so advised the postmaster of Capiz by telephoning to him to that effect from the Lipas dock.”
The last paragraph of the answer is as follows:
“That respondent regrets that the change in the itinerary of the steamer Luis R. Yangco on the occasion in question has caused inconvenience to the complainant, and to avoid such misunderstanding in the future all local notices relating to the sailing of the said vessel will be made subject to the proviso that the right is reserved to abandon such projected voyages without notice, this notification to the public having been continuously given for sometime past in the published advertisements in the daily press of Manila.”
Upon the hearing of the case no evidence was presented by the complainant or by the Government or the Board of Public Utility Commissioners. The facts set out in the complaint were admitted. The respondent offered Evaristo Francisco, one of its managers, as a witness, who testified in substance that the published schedule of the respondent expressly reserved the right to change the route therein set; out without previous notice to the public; that it had no contract with shippers either in Capiz or New Washington and none with the Government about carrying the mails; that the telegram was sent as an accommodation to the public and not as a duty which it owed under its published notices and schedule.
On examination by a member of the Board the witness testified in effect that up to the time of the complaint the usual rout of the vessel was from Manila to Boac, Romblon, from Romblon to Capiz sometimes, and sometimes to New Washington.; that notice of the arrival and departure of vessels at and from Capiz and New Washington was given when the captain deemed advisable; that respondent had no agent at Capiz but it telegraphed the postmaster to notify all interested as to the arrival and departure of the ship; that the vessel always goes to New Washington but not always direct, sometimes going to Capiz first and from there to New Washington. The witness was asked by a member of the Board if he had any plan by which “the difficulties indicated in this complaint can be avoided,” and by which he “could accommodate the business of the vessel to the necessities of the public,” To this witness replied that the occurrences such as were set out in the complaint were infrequent, and that he, “had no suggestion to make.” This was the only witness sworn and this testimony is the only testimony in the case except the written report of the captain of the ship which refers exclusively to the occurrence complained of.
Upon the pleading and evidence the Board made the following order:
“We therefore order the defendant to establish a fixed schedule of arrivals and departures for the steamer Luis R. Yangco between the ports of Manila, Boac, Romblon, Capiz, and New Washington, to maintain such schedule unless prevented by weather or other insuperable obstacles, to publish the same so that the terms thereof may be known generally to the public served by him and to file a copy thereof with this Board.”
This order is before us under an appeal taken under section 37 of Act No. 2307.
Many questions are raised and discussed. We find it unnecessary to consider more than one. Courts will generally refrain from deciding the question of the constitutionality of an Act of the Legislature unless it is absolutely necessary to a final determination of the case presented. Such a determination is not required here. We limit ourselves, therefore, to a decision of the question presented by the contention that there is not only absolutely nothing in the record to support the order of the Board but also that such order is wholly outside the issues raised by the pleadings, is contrary to the theory on which the proceeding was heard and tried, and is a complete surprise to the appellant who had no notice that the subject-matter of the order was before the Board for consideration and was, therefore, deprived of an opportunity to be heard with respect thereto.
We are of the opinion that the appellant’s contention is sound from every aspect. We have quoted or set out the pleadings substantially in full in order that the issues framed thereby may be clear. The complaint is based exclusively on a particular and single occurrence, namely, that the respondent gave a notice to the public, by means of a telegram, that its vessel would be at Capiz on a certain day and hour and would, on a certain day and hour, leave Capiz for New Washington; and that respondent failed completely to comply with that notice, but, instead, acted contrary thereto, the ship going from New Washington to Capiz instead of from Capiz to New Washington as stated in the notice. There was no suggestion in the complaint that respondent was not, in general, serving the public properly and efficiently, that its itinerary as published and adhered to was not the best under all the circumstances both for the respondent and the public, or that shippers and passengers suffered by reason of the schedule maintained as compared with some other; and especially was there no suggestion or hint in the complaint that the respondent should establish a fixed schedule, or even a schedule of any kind with regard to any port or ports. Complainant does not profess to have any knowledge on those subjects and does not deal with them in any way in his complaint. His only allegation is that respondent did not live up to or comply with a particular notice with respect to a particular call at Capiz, and that he was injured by that particular failure. That this is so is, to our mind, shown conclusively, not only by the facts stated in the complaint, but also by the prayer thereof. He prays: “The undersigned requests that the owner and master of the steamship L. R. Yangco be restrained from giving out unreliable information which deceives the public and causes undue annoyance, expense and delay.” There is no thought here of fixed schedules, or schedules of any kind, of particular port or ports in general. The simple cry is that, when the respondent gives a special notice to the public that it will do a certain thing at a certain time, it should not be permitted to ignore that special notice and do something entirely different from that advertised thereby. He asks for restraint and not for affirmative action; for protection against unreliable notice and not the fixing of a given schedule. He asks not for the protection of shippers or passengers by a change in schedule or by compelling respondent to run its ship according to a particular schedule. Nothing of that sort. The complaint is specific, not general. A complaint that a street car on a particular trip refused to stop at a designated place and take on a particular person cannot be construed into a petition that the street car company change its schedule or put on new cars or alter its manner of doing business in general, or into an allegation against the efficiency of the service rendered to the public as a whole.
Moreover, the complaint in this proceeding is not that the respondent did not perform its duties in general as a common carrier to the satisfaction of the public, or that it failed in any of those duties which a common carrier owes to the public. The only specification is that the respondent failed in a special duty created by a special notice, contained in the telegram, referred to in the complaint herein. The complainant contends that the sending of that telegram created a special duty on the part of the respondent, namely, that of complying with it; and that is the duty which the complainant claims the respondent violated when, instead of complying with the notice, it ignored it. The complaint, then, was not aimed at the relation of the common carrier to the public in general. It did not refer to or touch that relation. It did not declare that the respondent had violated any duty springing from that relation. It did not call in question its schedule, or the manner in which it was followed, nor did it charge that the operations of the respondent in general did not meet the demands of the public fully. It was aimed at a special incident; at a refusal to perform a special duty; a failure to meet a particular engagement made on that particular occasion by virtue of the notice contained in the telegram. In other words, the complaint by its silence concedes that the respondent was doing its duty to the public in general; and simply alleges that it failed to live up to a special engagement made for it on a special occasion. To put it in another way, the complaint asserts and charges that the respondent, in the performance of its duty, failed in one small particular on one single occasion. It was not meant to charge thereby that the performance of the duties in general was bad, or that the public was badly served in general, or that it ought to make a new schedule or maintain a fixed schedule. A complaint made to a tailor that a coat made by him for a customer lacks a button would not support a charge that the material of the coat was not as ordered, or that the cut of the coat was not as requested, or that the tailor should make a new coat. What complainant presents is simply a failure on the part of the respondent in a very small and minor particular which occurred while engaged in the performance of its duties and the discharge of its obligations, to which performance and discharge in general no objection was made.
The complaint filed was answered by the respondent. The answer adhered strictly to the allegations of the complaint and presented only such facts as it was thought tended to show that the respondent had a right to ignore the notice referred to in the complaint, or, if it did not have that right, its failure to comply therewith was excusable under all the circumstances. It fairly joined issue with the allegations of the complaint and assisted in presenting to the Board the very question which the complainant intended to present.
The evidence offered by the respondent, as we have already seen, was directed to the issue framed by the pleadings and to no other; and it may be safely said that there is nothing in the evidence which would warrant us in holding that the issues framed by the pleading were enlarged by consent of parties on the trial.
We are of the opinion, therefore, that the order of the Board of Public Utility Commissioners was outside of the issues framed by the pleadings before it, outside of the question presented for determination, and deals with a subject-matter foreign to that contemplated by the parties. Such being the case it cannot be sustained.
By this statement it is not meant to hold that the Board itself cannot present complaints and tender issues against public utilities which, when accepted, may form the basis for an investigation within the limits stated therein. Nor is it meant to hold that there must always be a complainant apart from the Board itself. What is held is that, in any case, whether begun by the Board or by a particular individual, the public utility proceeded against is entitled to know the facts upon which the complaint is based and the nature and extent of the relief demanded. It is necessary that the utility be given a proper and fair opportunity to defend itself. To do this it is necessary that issues be framed in some manner or other. It is not proposed to apply rigidly to proceedings before the Board of Public Utility Commissioners the rules of pleading and practice which in general govern proceedings in court; but it is the evident purpose of the law, as it is a requirement of the principles which govern due process of law, that a public utility should be duly and fully notified of the act or omission of which it is charged; and that that charge and that alone shall be the subject-matter of the investigation as well as of the order made in consequence thereof. It is not due process of law to charge a public utility with one act or omission and convict it of another; nor it is due process of law to investigate a particular subject in a given proceeding and then make an order which relates to an entirely different subject.
We find the respondent’s contention with regard to the failure of evidence to support the order of the Board to be sustainable also. No officer or board can issue an order affecting the property or rights of an individual or a corporation without evidence to sustain it. When we thus speak of evidence we mean evidence which was taken by the Board and appears in the record of the proceedings of the Board. It cannot be something in the mind of one member of the Board or of all the members. It cannot consist in something which one member knows or all of the members know unless it is a matter of which they can take judicial notice. It must be evidence which was presented during the proceeding in such manner as to permit a respondent to meet it by evidence of its own. That the statute (Act No. 2307) intended that the orders of the Board of Public Utility Com- missioners should be founded on legal evidence which appears in the record is clear from that provision of section 37 which provides:
“The Supreme Court is hereby given jurisdiction to review said order of the Board, and to set aside such order when it clearly appears that there was no evidence before the Board to support reasonably such order, or that the same was without the jurisdiction of the Board. The evidence presented to the Board, together with the finding of the Board and any order issued thereon, shall be certified by the Board to the Supreme Court.”
If the Board may make an order without any evidence in the record to support it, then the provision that the Supreme Court may review the evidence on which the order is based is without significance. If there is no evidence, the Supreme Court cannot review it; and the power thus conferred upon it by the statute is without value or effect. If the Board may draw its information from sources not shown by the record and base its conclusions upon facts not proved and which do not appear in the record, then the provision authorizing the Supreme Court to review the evidence is meaningless.” Not only is the respondent entitled to have in the record all of the facts which moved the Board to a conclusion to the end that it may know what it has to meet, but the people of the Philippine Islands are also entitled to have it there in order that the statute authorizing the Supreme Court to review it may be complied with.
An order, or judgment, or decree without evidence to support it is a nullity when properly attacked. (Edwards vs. McCoy, 22 Phil. Rep., 598.) It is an act against which the party adversely affected thereby has had no opportunity to defend himself and it therefore deprives him of his liberty or property without due process of law.
There is no evidence in this case that the public interests require the order complained of. There is no evidence that the public interest demands a fixed schedule. There is no evidence that the public would be better served by a fixed schedule than by the present schedule; in fact the evidence that the respondent has not now a fixed schedule is of the meagerest character; and there is absolutely no evidence that the public is suffering because the schedule is not fixed. Whatever evidence there is on that subject, and there is almost none in the record, shows that the respondent meets the demands of the shippers by going to the places where cargo may be had.
The order of the Board of Public Utility Commissioners appealed to this court is hereby vacated, set aside and annulled. Costs de officio. So ordered.
Arellano, C, J., Torres, Johnson, and Araullo, JJ., concur.