Anderson v. Thomas

• Decision Date: 17 October 1933
• Citation: 144 Or. 572,26 P.2d 60
• Parties: ANDERSON v. THOMAS, Commissioner of Public Utilities.
• Court: Oregon Supreme Court

26 P.2d 60

144 Or. 572

ANDERSON v. THOMAS, Commissioner of Public Utilities.

Supreme Court of Oregon

October 17, 1933

In Banc.

Appeal from Circuit Court, Marion County; L. G. Lewelling, Judge.

Suit by A. C. Anderson against Charles M. Thomas, State Commissioner of Public Utilities. From the decree rendered, the defendant appeals, and the plaintiff cross-appeals.

Decree affirmed in part, and reversed in part, and the suit dismissed.

J. M. Devers and Willis S. Moore, Asst. Attys. Gen (I. H. Van Winkle, Atty. Gen. on the brief), for appellant.

Percy A. Cupper, of Salem (Millen F. Kneeland, of Portland on the Brief), for respondent.

Ralph A. Coan, Alfred A. Hampson, Charles A. Hart, Frederick J Betz, and Arthur C. Spencer, all of Portland, amici curiæ.

BAILEY Justice.

This suit was brought by the plaintiff in the circuit court for Marion county against the commissioner of public utilities of this state to enjoin the enforcement of chapter 429, Oregon Laws 1933 (page 750), known as the "Motor Transportation Act." The demurrer to the second amended complaint was overruled, and a decree was entered by the circuit court declaring certain sections of the act unconstitutional and upholding the remaining provisions of the statute. From this decree both parties appealed.

Plaintiff according to the allegations of his second amended complaint was at the time of the institution of this suit, and for a long period prior thereto, "engaged in the transportation of property for hire by motor vehicles, owned and operated by him, upon the public highways of the state of Oregon, not exclusively in the incorporated limits of any city or town or within three road-miles thereof, under special and individual agreements, with persons of his own selection with whom he desires to contract," but not holding himself out as being willing to serve the public generally. In the regular course of his business plaintiff is engaged in transporting sugar, automobile supplies, and canned goods from the city of Portland, Or., to Salem, over the public highways, in motor vehicles, under special and individual contracts for such services. As a part of his regular business, the plaintiff also engages in seasonable transportation of fruits, nuts, vegetables, and farm products from orchards and farms to market, and at infrequent intervals in the transportation of logs, poles, and rough timber from the places at which they are cut to places where manufactured or used. He also uses the highways for the transportation of wood which he purchases from the producer and resells to the consumer.

With a claim that the Motor Transportation Act is violative of the Constitutions of the United States and of the state of Oregon, plaintiff alleges that said act in effect compels him as a private carrier and as a contract carrier engaged in private business to assume against his will the duties and burdens of a common carrier, and subjects him to unlawful and unreasonable regulations in that the commissioner of public utilities is authorized, and it is made his duty, (1) to supervise and regulate all contract carriers; (2) to fix, alter, regulate, determine, declare, and prescribe rates, fares, charges, classifications, and practices of contract carriers; (3) to prescribe the kind and form of accounts, manifests, receipts, and records to be used and kept pertaining to the operations of contract carriers, and the method and manner of keeping the same, and the preservation thereof for such time as the commissioner may determine proper, with access thereto and with right of audit and inspection thereof at all reasonable times; (4) to require the filing of such periodical reports or other data of such contract carriers as he may deem necessary; (5) to require the filing with such commissioner of the schedule of all rates, fares, and charges made, and all rules, regulations, and practices adopted by each contract carrier before the same become effective; and to require that said rates, fares, rules, regulations, and practices shall be reasonable and fair, and shall not be unduly discriminatory, prejudicial, or preferential, and that no contract carrier shall charge, demand, collect, or receive a greater, less, or different remuneration for the transportation of property or any service in connection therewith, from the rates, fares, and charges which shall have been regularly established and filed with the commissioner; (6) to supervise and regulate all contract carriers, who are forbidden to give or cause any unreasonable or undue advantage or preference to those whom they serve as compared with patrons of any common carrier, or to subject the patrons of any common carrier to any undue or unreasonable discrimination or disadvantage or by any unlawful competition to destroy or impair the service or business of any common carrier or the integrity of the state's regulation of any such service or business; (7) to classify and reclassify contract carriers and private carriers; (8) to cancel the permit of any contract carrier when the continued operation of the motor vehicle covered by his permit is contrary to public interest; and (9) to issue a permit to a contract carrier only upon the condition that the commissioner finds that (a) the equipment listed is safe for operation; (b) the operation proposed is not contrary to the public interest; (c) the rates, schedules, and/or contracts proposed by the applicant are approved by the commissioner; and (d) the applicant has agreed to pay the taxes required and to comply with the provisions of said act and obey all rules and regulations of the commissioner.

It is further averred that the Motor Transportation Act is unfair, unjust, and discriminatory against the plaintiff and in favor of (1) vehicles owned by creamery companies operated in picking up and transporting dairy products from farms and dairy ranches to the creamery; (2) vehicles used in hauling logs, poles, and rough timber, which are placed in a special class and exempted from the payment of fees, charges, deposits, and insurance exacted of contract carriers, and are not required to pay the higher rates and meet other obligations and restrictions imposed on contract carriers, even when transporting other similar products such as wood, shingles, shakes, posts, etc.; (3) vehicles defined as private carriers which are required to pay only three-fourths mill per ton mile tax; and (4) vehicles in the exempted class which are relieved from filing liability and property damage insurance policies for the protection of the public.

Plaintiff further declares that the provisions of the act are so exacting and onerous as to prevent a large number of contract carriers and private carriers from complying with its requirements, thereby tending to create a monopoly, in violation of section 20 of article 1, Constitution of the state of Oregon.

"In ascertaining the judicial value of a statute in litigation in which it is involved, it is necessary to consider not what actually has been done under it, but what it authorizes and permits to be done. Sterett & Oberle Packing Company v. Portland, 79 Or. 260, 154 P. 410, opinion by Mr. Justice Henry J. Bean. This doctrine was laid down by Mr. Justice Robert S. Bean in Hood River Lumbering Co. v. Wasco County, 35 Or. 498, 512, 57 P. 1017. See, also Leffingwell v. Lane County, 64 Or. 144, 129 P. 538. " Purple Truck Garage Co. v. Campbell, 119 Or. 484, 250 P. 213, 51 A. L. R. 816.

Before discussing the legal questions raised on this appeal, it will therefore be helpful to refer to the salient features of the act here under consideration.

Section 2 defines various terms used in the act, among which are the following:

"(f) 'Common Carrier' means any person who transports for hire, or who holds himself out to the public as willing to transport for hire, compensation or consideration by motor vehicle, from place to place, persons or property, or both, for those who may choose to employ him.

"(g) 'Contract Carrier' means any person engaged in transportation by motor vehicle of persons or of property, or of both, for hire, under special and individual agreements or leases, and not included in the term common carrier as hereinbefore defined.

"(h) 'Private Carrier' means any person engaged in the transportation by motor vehicle of property sold or to be sold by him in the furtherance of any private commercial enterprise, or property of which such person is the owner or lessee, when transported for the purpose of lease or rent.

"(i) 'Special Carrier' means any person engaged in the transportation of logs, piling, poles or rough timber by motor vehicle over the public highways, commonly known as log haulers, from point of origin to mill, retail yard, point of consumption or railway shipping point."

In this section the term "Motor Carrier" is defined as including "Common Carrier," "Contract Carrier," "Private Carrier," and "Special Carrier."

Section 3 provides that no part of the act, except that section and section 32, shall apply to persons operating motor vehicles (a) When operated wholly within the limits of a city or town and for a distance not exceeding three road miles beyond such corporate limits; (b) when engaged exclusively in transporting students or their instructors to or from school; (c) when regularly operating over a rural mail route; (d) "when used exclusively by the owner thereof in transporting from point of original production on farm or orchard of such owner in this state the products of said farms or orchards to creameries or to plants devoted to conditioning and packing the products for shipping or when used exclusively by the owner thereof in the transporting said products from said point of origin to market;...