On August  14, 1928, the applicant, the Orlanes & Banaag  Trans.  Co.  applied  for  a certificate of public  convenience to operate auto-trucks for the transportation  of passengers and freight on  the following five  lines:  Mabini-Tiaong, Fishery of Pansipit (San Nicolas)-San Luis, Inecbulan-Aplaya de  Bauan, San  Pablo-Dolores  and Nasugbu-Manila.  (Case No.  17059 of  the  Public Service Commission.)

This application was opposed by the  Batangas  Transportation Co. in writing on  December 6 and December 19, 1923, as shown by the record, alleging that the Mabini- Bauan and Batangas-Lipa lines applied for by the Orlanes &  Banaag Trans.  Co. are already covered by the application filed by the opponent, the Batangas Transportation Co.,  case No.  16824, as well as the Lipa-Tiaong line via Lumangbayan and the Pansipit-Taal-San  Luis line;  that the opponent, the Batangas Transportation Co., has already been operating on the Bauan-Batangas route for ten years and is at present maintaining a half-hour schedule thereon; that a part of the Taal-San Luis line  has been  applied for by Cayetano Orlanes in case No. 16470, and that, therefore, the present application  filed  by  the  Orlanes  & Banaag Trans. Co. should be limited to that part of the line extending from the Pansipit Fishery to  Taal; that  opponent Batangas Transportation  Co.  has also covered the whole line from San Luis to San  Nicolas via Lemery and  Taal in the former application,  No. 16824, with a half-hour service.

An opposition was also filed by Eliseo Silva, alleging that he is an auto-truck operator, at present rendering  a regular service between Banaybanay and Lipa, under a certificate of public convenience issued to him by the Public Service Commission in case No.  16098 with  a  fixed schedule of trips; that the service he is at present rendering is sufficient to satisfy the public  needs  for autotrucks; and that the proposed operation by Orlanes  & Banaag will not promote the public convenience, as required by Act No. 8108, but, on the contrary, will cause ruinous competition.

The commission  heard this application together  with those numbered 19364, 20343, 20747,  and  20883, and  on April 29, 1930, passed upon it authorizing the Orlanes & Banaag  Trans. Co. and the Batangas Transportation Co. to operate the Mabini-Tiaong line, with a joint and  combined schedule, so that both companies  would render  an alternate half-hour  service; and  issuing  a certificate  of public convenience to the Batangas Transportation Co. to operate  the Pansipit Fishery-San  Luis  line, at the same time denying the application filed by the Orlanes & Banaag Trans. Co.

And with reference to the opposition filed by Eliseo Silva, the commission, by an order dated June 26, 1930, acting on the motion for reconsideration  filed by  said opponent, required the applicant Orlanes & Banaag Transportation Co. to observe and  comply  with  the following condition when making trips on the  Lipa-Banaybanay-San Jose  line:

"The applicant is hereby prohibited from accepting passengers and freight  in Lipa or at any point Oeyond Lipa, going towards Banaybanay or any other point before,  or from Banaybanay or any  other point beyond Banaybanay, going to Lipa  or at any point before."

The resolution regarding the Mabini-Tiaong line originated the appeal taken by  the Batangas Transportation Co. (G. R. No. 33827), and that of the Pansipit Fishery-San  Luis line is the object of the appeal taken by the Orlanes & Banaag Trans. Co. (G.  R. No.  33839).

The  appellant Batangas Transportation Co.  (G. R. No. 33827) makes  the following assignments  of error:

1. The Public Service  Commission erred in  granting a certificate of public convenience to the applicant, Orlanes & Banaag Transportation  Co., to operate a transportation service between Mabini, Batangas, and  Tiaong, Tayabas via Bauan, Batangas,  San  Jose,  and Lumangbayan  (old Rosario).
   
2. The Public Service Commission erred in not holding that the Batangas Transportation Co. has a preferred right to extend its lines and operate exclusively on any part of the above line where it does not now operate.
   
3. The Public Service Commission erred in denying the motion for reconsideration  of the Batangas  Transportation Co."

Eliseo Silva filed a petition for review  of the commission's original resolution in case No. 17059  before  the amendatory order referred  to above was issued, and in order to obtain a categorical order  with respect  to  the exclusion of the Banaybanay-Lipa line he appealed, making the following assignments of error:

"In not excluding Banaybanay-Lipa  from the Mabini-Tiaong line, granted to the appellee  in the decision rendered in this case; and

"In denying the motion for reconsideration filed  by the herein appellant."

For a  better understanding of the case we deem  it convenient to take  into account the facts considered by the commission, in issuing the order appealed from.  The commission states the following in its decision:

"Mabini-Tiaong Route: The  black dotted line  marked X in the sketch is that referred to in the application filed by  the Orlanes & Banaag Transportation Company;  the red  pencil dotted line indicates the portions objected to by the Batangas Transportation  Company; the lines in red pencil show the present routes  operated by the Batangas Transportation Company.

"The  opposition,  then,  only  covers  the following portions :

"Mabini, Bauan, Batangas, San Jose, Old Rosario or  Lumangbayan and Tiaong.

"The  lines at  present operated by  opponent Batangas Transportation Company  start  at Bauan for Batangas, Patay, going towards Ibaan; and Lipa and Rosario.  These lines are at present operated by the Batangas Transportation Company, covered by case No. 16825, and the lines mentioned in this route have been applied for  in case No. 16824.

"At present the line  in black ink represents  the present lines  of the Orlanes & Banaag Transportation Company and  the  black dotted  lines represent  also  the Cayetano Orlanes route  under special permits.

"On the other hand,  the Orlanes & Banaag Transportation  Company has  applied for the Mabini-Batangas and Batangas-Lipa portion via San Jose, in cases  Nos.  15173 and  16470, and  the Lipa-Lumangbayan portion was also applied for in case No. 15470.

"The  Lumangbayan-Tiaong portion, although only ap- plied  for in case No. 17059, is merely, according to the allegations, the connection of the route of  the applicant passing through Tiaong, with said applicant's Batangas- Lapa  route via  San Jose, and  Cuenca-Lipa  by  way  of Banaybanay.

"According  to case No. 12746,  the applicant Orlanes & Banaag Transportation Company is also at present operating a portion of the Lipa-Rosario line and from Bauan to Batangas and  is also operating on the Lipa-Batangas line under a special  permit,  where  the  opponent Batangas Transportation Company has never operated.

"So that, in view of the foregoing, the most reasonable and  equitable  way  would  be, since  certain portions are jointly operated  by both  companies,  or  the  Orlanes & Banaag Transportation Company and the Batangas Transportation Company  along entirely parallel  lines (Bauang- Ba tan gas), and since the line between Lipa  and Batangas is also operated, although by special permit, by  the Orlanes & Banaag  Transportation Company; and since also  the opponent the  Batangas Transportation Company, has  in some cases, applications prior to those filed by the applicant Orlanes & Banaag Transportation Company, the commission  believes that the only way to remove these difficulties would be to permit both the applicant Orlanes & Banaag Transportation Company, as well as the opponent Batangas Transportation Company,  to  operate  jointly  an hourly service  so that the public may have a half-hour service between Tiaong and  Mabini, via Bauan,  Batangas,  San Jose, Banaybanay, Lipa, Lumangbayan, to  Tiaong.

"In favor of the applicant, for instance,  is the fact that in this  case,  application has been made for the line from Mabini  to Tiaong; there  is  at present a  regular service from Bauan to Batangas up to Patay going towards Ibaan, which coincides with that of the  Batangas  Transportation Company; the same may be said of the applicant's regular line from Lipa to Rosario, and the applicant also operates, under special permit, the line between Batangas and Lipa, via Banaybanay.  These operations are authorized in cases Nos. 16173, 16470, and 17059.

"In favor  of the Batangas  Transportation Company, there is, on the other hand, the fact that it  operates a regular service between Bauan and Batangas  up to Patay in the direction of Ibaan, and also the Lipa line in the direction of  Rosario which  are wholly coincident with those of the applicant; and also in favor of the opponent Batangas Transportation Company is the fact that prior to this case it filed  an application to operate along the routes  here applied  for.   (See cases Nos. 16824 and 16825.)

"To this end, if any  part has  not yet been applied for by these two companies,  they should present their respective applications and determine how they are to render a joint half-hour service which will fit in with the other services already rendered by said companies.

"In recognition of the right which the Batangas Transportation Company has to several portions of this route, the amended  application filed by the  Orlanes &  Banaag Transportation Company contains the following statement:

"'On file  Mabini-Tiaong  line,  the applicant shall  not accept passengers from the town of Bauan to Batangas and viceversa; nor shall it accept passengers  from  Lipa to Lumangbayan  (Rosario)  and viceversa   (Amended application of  the  Orlanes  & Banaag Transportation  Co., dated March 16, 1929.)

"But there is something more, and that is that as between the applications filed by  the Orlanes & Banaag Transportation Company and by the Batangas Transportation Company, the one presented by the latter was filed  prior to that of the  Orlanes  & Banaag Transportation Company; the numbers of their respective cases are the best evidence.

"There remain some portions for which the  Batangas Transportation Company has not filed an application.   For example: From Aplaya de Bauan, via Bauan, San Jose, Li pa, and Banaybanay.

*         *           *              *             *             *                *
"The Orlanes & Banaag Transportation Company also filed an application for the Pansipit Fishery line (San Nicolas), San Luis, via Mercado de Taal, as did also the Batangas Transportation Company in case No. 16824.   There is only a slight difference between the routes applied for by both companies in  that  while  that of the  Orlanes  & Banaag Transportation Company goes to the Pansipit Fishery, that of the Batangas Transportation Company goes as far as the barrio of Sto. Tomas.  That is to say, that while the former goes across  the river to the fishery, the latter stops on the bank of the river in the barrio of San Nicolas.

"This line then was not operated by any carrier up to the time the Batangas Transportation Company filed its application in case No. 16824 and the Orlanes & Banaag Transportation Company in case No. 17059.

"From the same opposition of the Batangas Transportation Company  dated December  6, 1928, it  may be seen that it admits the fact  that the applicant has applied for the Taal-San Luis line in case No.  16470, and therefore alleges in its opposition  that the application should be limited to that  part of the line from the Pansipit  Fishery to Taal.

"The opponent has also applied for the San Luis-San Nicolas line, via Lemery and Taal in case No. 16824.

"Wherefore, in view of the foregoing, it is held that the applicant Batangas Transportation Company is entitled to operate along this line  in order to extend its  service, so that instead of stopping at Taal, it may continue on to San Nicolas, as applied for.

*         *           *              *             *             *                *

"For the foregoing considerations,  and in  view of the evidence and the facts established in these records, in accordance with the principles laid down by this commission and the doctrines of the Honorable Supreme Court; and taking into account the public needs and  convenience, and that the establishment of these companies and the authority granted them to do business shall adequately and properly promote the public interests, we hereby issue the following

"ORDER
"The Mabini-Tiaong line is hereby adjudicated to the Orlanes & Banaag Transportation Company and the Batangas Transportation Company, for parallel operation with a combined schedule to be submitted by both companies within the period of thirty days from the promulgation of this decision, in such a manner that  both companies  shall alternately render a half-hour service, to be  combined with their present operations,  subject to the terms, conditions, and regulations hereinafter set forth.

"The San Luis-San Nicolas route via Lemery and Taal is likewise adjudicated to the Batangas  Transportation Company, dismissing  the opposition filed by  the Orlanes & Banaag Transportation  Company, and this operation  shall also be subject to  the terms, conditions, and regulations hereinafter specified."

Considering the motion for reconsideration  filed by Eliseo Silva  with  reference to the decision rendered in case No.  17059, the  commission said:

"In the  motion and at the oral argument in open session, the movant contended that both in the decision rendered in this case, and in that rendered in case No. 17059, the Banay-banay-Lipa route  is included, without any  prohibition or restriction with regard  to the authority given in said decisions as to this  route, the same being part of the line operated by the  opponent-movant Silva, according to the certificate of public convenience issued to the latter in case No. 16098.

"The movant also contends that in other  applications similar to those of Mariano Uy Tek Ko and Segismundo et al., the route in question  was also applied for, but on account of the movant's opposition, the applications were denied.

"A careful examination of the records of this commission shows that  this contention is  well founded.  According to the certificate of public convenience issued in favor of Eliseo Silva in case No. 16098, Banaybanay-Lipa is a part of the lines of this opponent.

"Besides  Eliseo Silva, the Batangas  Transportation Go. is also an operator  along the route in question.  And in several cases wherein applications were made for said route, the same  were denied.

"In view of  all the  foregoing and considering that the request contained in the motion for reconsideration is justified, the commission  hereby grants the  same and orders the applicant  the Orlanes & Banaag Transportation  Co. to observe and comply with the following condition when making trips  along the  Lipa-Banaybanay-San  Jose line authorized in this case:

" 'The applicant is hereby  prohibited from  taking  passengers and freight from Lipa  or beyond to Banaybanay or any point before, or from Banaybanay or  beyond to Lipa or any point before.'

"This condition is hereby included in  the ones prescribed in the first  condition of the decision rendered  in this  case on April 28th,  1930, and the applicant is hereby admonished that upon the first violation of  said condition  the certificate of public  convenience issued to it by  said decision shall be cancelled."

Accepting, as we do, the facts set forth  in the decision of the commission, we believe the resolution appealed from is supported by the evidence of record, and, in accordance with section 35 of Act No. 3108, we find no reason either to reverse or  modify said resolution.

The ground alleged by the Batangas Transportation Co. that being an old operator in the Province of Batangas, it is entitled to the  exclusive right of extending its line of operations to any  public thoroughfare that  may be constructed in said province, is untenable; for this would be equivalent to establishing a monopoly in  this business in its favor.  The decision  of this court in Javier vs. Orlanes (53 Phil., 468),  cited in  support  of the appellant Batangas Transportation Co., has  not the effect of establishing in favor of an old  carrier a sort of Torrens  title on all lines constructed or to be constructed for public traffic within the jurisdiction of the province where it  operates.   It is true that in the decision cited it was held that before permitting a new company or a new operator to invade the territory of another already established with a certificate of public convenience, thereby entering into competition with it, if this be for the benefit of  the public, the prior operator must be given an opportunity to extend its service in order to meet the public needs in the matter of transportation.   This refers to a definite line, operated  by one operator, on which a new operator  should not be allowed to operate, without the former having refused to extend its services on the line already operated to meet the  public  needs in the matter of transportation.  But  this rule is not applicable to lines or roads  not operated by the old carrier, in which case the opportunity to exploit the transportation business along those new lines  must be given to all those  who may apply for it, notwithstanding the fact that the former carrier has a certificate of public convenience to  engage in this business in a definite province.

Inasmuch as the record  shows that the order appealed from is in accordance with the facts stated in the commission's decision, and inasmuch as it has not  been shown that there was abuse of discretion on the part of the commission, we are of opinion that the appeal taken by the Batangas Transportation Co. should be dismissed.

In  regard to  the appeal taken by  Eliseo  Silva, it will suffice to say that the right conferred upon him by his certificate of public convenience to operate on the Banay-banay-Lipa line is safeguarded by the order issued by the commission on June 26,  1930, quoted above, and hence, we believe this appeal has no merit.

With reference  to the Pansipit-San Nicolas line,  the Orlanes & Banaag Trans. Co. bases its appeal upon the fact that being an operator in the Province of Batangas at present, it is entitled to extend its service to the San Luis-Pansipit line.

The Batangas Transportation Co., in turn,  argues that since it holds a certificate of public convenience to  operate an auto-truck  service in the Province of Batangas, it is entitled to extend  its service to the new lines of San Luis-Taal and Taal-San Nicolas in question.  The record shows that the applicant Orlanes & Banaag Trans. Co. has a permit to operate its auto-trucks from certain points in  the Province of Batangas to Manila, but without any right to handle passengers at intermediate points within said Province of Batangas; whereas  the Batangas Transportation Co. has a certificate of  public  convenience to operate its auto-trucks for passengers  and freight between  several points of said Province of Batangas.

With regard to  the new lines or  routes within the jurisdiction  of  the Province  of  Batangas recently opened to public traffic,  financial   conditions  and business facilities being equal, we believe priority in the filing of the application to be  an  important factor in determining the right to the certificate applied for.

According to the record,  no one had  operated  on this line  until the  Batangas Transportation Co. filed its application in case No.  16824, after which the Orlanes &  Banaag Trans. Co. also applied for it in the present case No. 17059. It is true  that the  Orlanes & Banaag  had  applied  for the Taal-San  Luis line  in  case No. 16470,  but  it does not appear that the commission acted upon it  until it was again included in the present case No. 17059.  The Batangas Transportation Co. then was the first to apply for the San Luis-San Nicolas line via Taal.   And considering the financial condition of this company and its  capacity to render satisfactory  service to the public, we believe the commission was right in  issuing  the certificate of public convenience in question to it,  with the understanding,  however,  that the  commission  should  require  the Batangas Transportation  Co. to run its auto-trucks to the Pansipit Fishery, crossing the river in the barrio of San Nicolas.

The appellant Orlanes & Banaag Trans. Co. erroneously contends that the appellee is not entitled to ask for a  positive remedy in  this case,  being a mere opponent, for the appellee is also an applicant, as the decision  appealed  from shows.

By  virtue of  the  foregoing, the decision appealed  from must  be, and is hereby, affirmed with regard to the  lines in question, Mabini-Tiaong and San Luis-Pansipit  (San Nicolas).  Without  costs.  So ordered.

Avanceña, C. J., Johnson, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real,  JJ., concur.

STREET, J., concurring and dissenting:

I dissent from the decision rendered in G. R. No. 33827, and concur in the decision rendered in G. R. No. 33839.