Barney v. Board of Railroad Com'rs

• Decision Date: 19 December 1932
• Docket Number: 6982.
• Citation: 17 P.2d 82,93 Mont. 115
• Parties: BARNEY v. BOARD OF RAILROAD COM'RS et al.
• Court: Montana Supreme Court

17 P.2d 82

93 Mont. 115

BARNEY v. BOARD OF RAILROAD COM'RS et al.

No. 6982.

Supreme Court of Montana

December 19, 1932

Appeal from District Court, Fergus County; John C. Huntoon, Judge.

Suit by Maynard N. Barney against the Board of Railroad Commissioners of the State of Montana and others. Judgment for plaintiff and defendants appeal.

Judgment reversed, and cause remanded, with directions to dismiss the complaint.

ANGSTMAN and FORD, JJ., dissenting.

L. A Foot, Atty. Gen., and Francis A. Silver, of Helena, for appellants.

Ralph J. Anderson, of Lewistown, and J. J. Jewell, of Hobson, for respondent.

J. B C. Knight, of Anaconda, Speer & Hoffman, of Great Falls, Johnston, Coleman & Jameson, of Billings, E. G. Toomey, of Helena, Clift & Glover, of Great Falls, Murphy & Whitlock, of Missoula, D. M. Kelly, of Butte, John E. Corette, of Butte, George W. Pierson, of Billings, and Gunn, Rasch, Hall & Gunn, of Helena, amici curiae.

GALEN J.

Decision in this case was handed down last June; all the members of the court concurring in an affirmance of the judgment. In due time after the opinion was promulgated the defendants filed a motion for rehearing, and a number of corporations and associations asked leave to present arguments as amici curiae. As the questions involved are of great public importance, we determined to set the cause down for reargument and to permit the amici curiae to be heard. After extended argument and much study, and having the advantage of decisions rendered since the cause was submitted originally, notably one by the United States Supreme Court, we are convinced that in deciding the case we considered the problem in a too restricted aspect. Upon more mature consideration we are convinced that while the act is subject to criticism in some particulars, it does not impinge upon the Fourteenth Amendment, nor is it otherwise violative of constitutional provisions; therefore, the original opinion is withdrawn and this one substituted. For a better understanding of the conclusions herein reached, we will restate the case and the determinative question presented for decision.

The plaintiff is engaged in transporting property under contract for hire by motortruck from Lewistown to Billings by way of Roundup, and from Lewistown to Harlowton. He does not hold himself out as a common carrier or as willing to carry property for others than those with whom he has contracts, and has refused to transport property for numerous persons and corporations. He made applications before defendant board for certificates to carry on this service between the points named as a contract carrier under plan C provided for by chapter 184, Laws of 1931, paying the proper fee and furnishing the required information.

Written protests were filed by the Chicago, Milwaukee, St. Paul & Pacific Railway Company, the Great Northern Railway Company, and the Railway Express Agency, Incorporated, in which it was averred that the transportation business was insufficient in the territory specified in the applications to justify the existence of new and additional carrier facilities; that the service was already adequate and convenient and the public convenience and necessity did not require the proposed service, and that the facilities furnished by the railways and express company would be impaired by reason of loss of revenues if the applications were granted.

Plaintiff thereupon filed with the board a motion to strike the allegations from the protests, alleging that for stated reasons they constituted no ground for denying the applications. A hearing was had before the defendant board at which, over the objections of plaintiff, evidence was heard in support of the allegations of the protests. Thereafter the board denied plaintiff's applications on the ground that public convenience and necessity did not require the services proposed by plaintiff, and ordered that he cease transporting property by motor vehicle for compensation between those points. Thereupon plaintiff brought this action, alleging the foregoing facts, to restrain the board and its officers from enforcing its order and from prohibiting plaintiff from using the highways as proposed by him in the conduct of his business, and as he had theretofore been using them. To the complaint defendants filed a general demurrer, which was overruled. Defendants declined to further plead, and suffered judgment to be entered in favor of plaintiff for the relief demanded by him, from which they appealed.

The appeal presents the sole question of the validity of chapter 184, Laws 1931, in so far as it authorizes the Board of Railroad Commissioners to exclude private carriers from the use of the highways.

The title of the act (chapter 184, Laws 1931) provides "for the Supervision, Regulation and Control of the Use of the Public Highways of the State of Montana by Motor Carriers Engaged in the Transportation *** of Persons and Property for Hire Upon the Public Highways of the State of Montana," and therein it is declared that by the act it is intended to confer "Jurisdiction Over Such Transportation, Motor Vehicles and Their Operations, Upon the Board of Railroad Commissioners." Thus its purpose is made plain. And in the body of the act it is expressly declared that "nothing in this Act shall be construed as converting or attempting to convert a private carrier into a common carrier, and it is hereby declared that this Act is intended primarily as a regulation of the public highways of the State of Montana." Section 22.

Motor carriers are placed in three classifications designated A, B, and C. Classes A and B, as in the act defined, embrace common carriers, not necessary to be here considered, while "Class C" carriers embrace "all motor carriers operating motor vehicles for distributing, delivering or collecting wares, merchandise, or commodities, or transporting persons, where the remuneration is fixed in and the transportation service furnished under a contract, charter, agreement, or undertaking." Section 2 of the act. And such carriers are prohibited from operating on the public highways of the state without first having obtained from the Board of Railroad Commissioners "a certificate that public convenience and necessity require such operation." Section 10.

While not to be commended as a model piece of legislation, it is our duty to uphold rather than condemn the act, unless its unconstitutionality appears beyond a reasonable doubt. Herrin v. Erickson, 90 Mont. 259, 2 P.2d 296; Arps v. State Highway Commission, 90 Mont. 152, 300 P. 549; State ex rel. Diederichs v. State Highway Commission, 89 Mont. 205, 296 P. 1033; Martien v. Porter, 68 Mont. 450, 219 P. 817; State ex rel. Mills v. Dixon, 66 Mont. 76, 213 P. 227. "We recognize, of course, that against the challenge of its validity a state statute cannot stand upon legislative declaration alone. Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147; Ribnik v. McBride, 277 U.S. 350, 48 S.Ct. 545, 72 L.Ed. 913, 56 A. L. R. 1327; Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813, 32 A. L. R. 661; Frost v. Okla. Comm., 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483; Tyson v. Banton, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718, 58 A. L. R. 1236; Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 43 S.Ct. 630, 67 L.Ed. 1103, 27 A. L. R. 1280; but those cases and many others clearly establish that in all the courts, and certainly in the courts of first instance, the legislative declaration of purpose and policy is entitled to gravest consideration, and, unless clearly overthrown by facts of record, must prevail." Stephenson v. Binford (D. C.) 53 F. (2d) 509, 514.

"The rule was well stated in Continental Baking Co. v. Woodring (D. C.) 55 F. (2d) 347, loc. cit. 353, wherein Judge McDermott of the Tenth Circuit said: 'When the Legislature acts within the scope of its legislative power, when no facts are disclosed as to the reasons which actuated the legislation, the presumption of constitutionality stands, unless no fair reason can be ascribed for the legislative action. Hardware Dealers Ins. Co. v. Glidden, 284 U.S. 151, 52 S.Ct. 69, 76 L.Ed. 214; O'Gorman v. Hartford Ins. Co., 282 U.S. 251, 51 S.Ct. 130, 75 L.Ed. 324; Standard Oil Co. v. Marysville, 279 U.S. 582, 49 S.Ct. 430, 73 L.Ed. 856. That a legislative classification should stand, "if any state of facts reasonably can be conceived that would sustain it"; that the burden is on the assailant to show that the classification is "essentially arbitrary.""' Schwartzman Service, Inc., v. Stahl (D. C.) 60 F. (2d) 1034, 1037.

In the case last cited, the court had under consideration a statute of Missouri enacted in 1931 (Laws 1931, p. 304), for the purpose of regulating the use of public highways by both common and private motor carriers. Sections 5264-5280, both inclusive, Missouri Statutes Annotated. There the contract carrier is required to obtain a "contract hauler permit" from the Public Service Commission as a condition precedent to operating on the public highways, and the object of such permit is to enable the Public Service Commission to determine the need of such service and the effect of such added transportation facilities "upon other transportation service being rendered." It is the duty of the court to so construe the act as to effectuate the object of the Legislature (State ex rel. Evans v. Stewart, 53 Mont. 18, 161 P. 309; State ex rel. Carter v. Kall, 53 Mont. 162, 162 P. 385, 5 A. L. R. 1309; In re McLure's Estate, 68 Mont. 556, 220 P. 527; State ex rel. Special Road District No. 8 v. Millis, 81 Mont. 86, 261 P. 885); and the title of the act is indicative of the legislative intent and purpose in enacting it. State ex...