Burns v. Lukens

• Decision Date: 02 August 1928
• Docket Number: 5245
• Citation: 269 P. 596,46 Idaho 603
• Parties: FRANK J. BURNS, Respondent, v. FRED E. LUKENS, as Commissioner of Law Enforcement of the State of Idaho, Appellant
• Court: Idaho Supreme Court

269 P. 596

46 Idaho 603

FRANK J. BURNS, Respondent, v. FRED E. LUKENS, as Commissioner of Law Enforcement of the State of Idaho, Appellant

No. 5245

Supreme Court of Idaho

August 2, 1928

REGULATION OF AUTO TRANSPORTATION COMPANIES-OBITER DICTUM.

Decision of supreme court, in action by common carrier pleading existence of truck operators under hauling contracts and presenting issues on which it was contended that Laws 1925 chap. 197, since amended in immaterial respects by Laws 1927 chap. 237, would stand or fall, depending on whether it applied to such operators, that requirement that carrier furnish property damage insurance or surety bond negatived intention to include private carriers, held not dictum nor confined to private carriers of their own property, as distinguished from such carriers of other's property for compensation.

APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. Edgar C. Steele, Judge.

Action to enjoin enforcement of Sess. Laws 1925, chap. 197, as amended, Sess. Laws 1927, chap. 237, regulating auto transportation companies. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Frank L. Stephan, Attorney General, and H. O. McDougall and Leon M Fisk, Assistant Attorneys General, for Appellant.

There is a pronounced line of demarcation between what is said in an opinion and what is decided by it. (Bashore v. Adolf, 41 Idaho 84, 41 A. L. R. 932, 238 P. 534.)

Tannahill & Leeper, for Respondent.

Judicial dicta is binding as precedent. (15 C. J. 953; Sprague v. Northern Pacific Ry. Co., 122 Wis. 509, 106 Am. St. 997, 100 N.W. 842; Matter of Fanoni, 88 Misc. 442, 152 N.Y.S. 218, 110 N.E. 1040; Buchner v. Chicago Ry. Co., 60 Wis. 264, 19 N.W. 56.)

The judicial interpretation of a statute is part of the law of the land and is as binding as the original statute. (Taylor v. Ypsilanti, 105 U.S. 60, 73, 26 L.Ed. 1008; Fidelity State Bank v. North Fork Highway Dist., 35 Idaho 797, 31 A. L. R. 781, 209 P. 449.)

TAYLOR, J. Wm. E. Lee, C. J., and Givens, J., concur.

OPINION

TAYLOR, J.

Plaintiff brought this action to enjoin the defendant, Commissioner of Law Enforcement, from enforcing against him chapter 197 of the Laws of 1925, as amended by chapter 237 of the Laws of 1927, and requiring him to furnish property damage insurance or surety bond upon each vehicle operated by him, and the payment of permit and license fees thereunder as an auto transportation company. Defendant appeals from a judgment, rendered on demurrer, enjoining such enforcement.

The complaint alleges plaintiff's ownership and operation of three 3 1/2-ton trucks and one 5-ton truck used exclusively by him in hauling lumber under a contract with a lumber company, at a stipulated price per thousand feet, from Weippe to Greer, Idaho, under a contract contemplating the hauling of not less than five million feet of lumber per year over highways of the state of Idaho; that plaintiff has not acted and is not acting as, and is not, a common carrier. Appellant contends that plaintiff is amenable to the above acts; that he is carrying under contract the property of others for compensation, and as such is an auto transportation company, amenable to the act, even though a private carrier.

The amendments of 1927 do not materially change the provisions of the act of 1925 upon points here involved in so far as construed in Smallwood v. Jeter, 42 Idaho 169, 244 [46 Idaho 605] P. 149. Appellant contends that that which was therein said, to the effect that the act did not apply to private carriers, was not necessary to the decision, and was dictum; that the plaintiff is an auto transportation company under the definition of the acts; that a distinction should be made between so-called private carriers carrying their own property, and the plaintiff, a carrier of the property of others for compensation; that, in any event, the decision in the Smallwood case, that private...