Claypool v. Lightning Delivery Co.

• Decision Date: 11 May 1931
• Docket Number: Civil 2982
• Citation: 299 P. 126,38 Ariz. 262
• Parties: W. D. CLAYPOOL, AMOS A. BETTS and LOREN VAUGHN, as Members of and Constituting the Corporation Commission of the State of Arizona, E. W. WHITWORTH, as Superintendent of the Motor Vehicle Division of the Arizona Highway Department, and JOHN W. MURPHY, as Attorney General of the State of Arizona, Appellants, v. LIGHTNING DELIVERY COMPANY, a Corporation, ARIZONA STORAGE & DISTRIBUTING COMPANY, a Corporation, CHAMBERS TRANSFER & STORAGE COMPANY, a Corporation, and All Other Persons and Corporations Similarly Situated, Appellees
• Court: Arizona Supreme Court

299 P. 126

38 Ariz. 262

W. D. CLAYPOOL, AMOS A. BETTS and LOREN VAUGHN, as Members of and Constituting the Corporation Commission of the State of Arizona, E. W. WHITWORTH, as Superintendent of the Motor Vehicle Division of the Arizona Highway Department, and JOHN W. MURPHY, as Attorney General of the State of Arizona, Appellants, v. LIGHTNING DELIVERY COMPANY, a Corporation, ARIZONA STORAGE & DISTRIBUTING COMPANY, a Corporation, CHAMBERS TRANSFER & STORAGE COMPANY, a Corporation, and All Other Persons and Corporations Similarly Situated, Appellees

Civil No. 2982

Supreme Court of Arizona

May 11, 1931

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded, with instructions.

Mr. K Berry Peterson, Attorney General, Mr. Arthur T. La Prade Assistant Attorney General, and Mr. H. A. Elliott, Special Counsel, Arizona Highway Department, for Appellants.

Messrs Sloan, Holton, McKesson & Scott, for Appellees.

OPINION

LOCKWOOD, J.

Lightning Delivery Company, a corporation, Arizona Storage & Distributing Company, a corporation, and Chambers Transfer & Storage Company, a corporation, hereinafter called plaintiffs, filed this action against W. D. Claypool, Amos A. Betts, and Loren Vaughn, as members of the corporation commission of the state of Arizona, E. W. Whitworth, as superintendent of the motor vehicle division of the Arizona highway department, and John W. Murphy, as Attorney General of the state of Arizona, hereinafter called defendants, to restrain the latter, as officers of the state, from proceeding to collect from plaintiffs the motor vehicle tax imposed under the provisions of section 1680, Revised Code 1928. The substance of the complaint was that (a) the statute did not apply to plaintiffs, and (b) that, if it did, it was discriminatory and unconstitutional.

Defendants demurred generally and specially to the complaint. The special demurrers were: (a) misjoinder of causes of action; (b) that the action was to enjoin the collection of a tax; (c) that it was to prevent the execution of a public statute for public benefit; and (d) that plaintiffs had a plain, speedy, and adequate remedy at law. The general demurrer raised the point that the allegations of the complaint showed each of plaintiffs to fall within the terms of the statute. Each of the demurrers was overruled, and, the motor vehicle superintendent having in the meantime determined and assessed the tax due from each plaintiff under the terms of the statute, defendants filed cross-complaints against them, seeking the collection of the tax. They also filed a plea to the jurisdiction of the trial court on the grounds: (a) that plaintiff had a plain, speedy, and adequate remedy at law; (b) that the action sought to enjoin the collection of taxes imposed by the state of Arizona; (c) that the action sought to enjoin the execution by officers of the law of a public statute for public benefit; and (d) that the action constituted a collateral attack upon the judgments and decree of an officer of the state possessing and having exercised judicial power. The plea to the jurisdiction was denied, and upon plaintiffs' motion defendants' cross-complaints were stricken. The matter was tried by the court without a jury, and a decree was rendered in favor of plaintiffs upon the ground that none of them was a common carrier, and therefore within the terms of the statute, except plaintiff Chambers Transfer & Storage Company, and it only in its operation of a stage line from Phoenix to Buckeye, in Maricopa county, and from the decree this appeal has been taken.

While there are a number of other questions involved in the appeal, the primary one is whether or not plaintiffs, or any of them, are common carriers. In considering this question we think it best first to determine the elements necessary to constitute a party a common carrier, and then to apply these elements to the facts in the case at bar.

The Supreme Court of Arizona, in the case of Santa Fe, Prescott & Phoenix Ry. Co. v. Grant Bros. Construction Co., 13 Ariz. 186, 108 P. 467, laid down the test by which it is determined whether a party is a common carrier, as follows:

"'(1) He must be engaged in the business of carrying goods for others as a public employment, and must hold himself out as ready to engage in the transportation of goods for persons generally as a business, and not as a casual occupation. (2) He must undertake to carry goods of the kind to which his business is confined. (3) He must undertake to carry by the methods by which his business is conducted, and over his established roads. (4) The transportation must be for hire. (5) An action must lie against him if he refuses, without sufficient reason, to carry such goods for those who are willing to comply with his terms.'"

The first four characteristics set forth in this definition are almost universally approved, and we reiterate them as being correct. We think, however, that, strictly speaking, the fifth has no place in the definition of a common carrier. It is rather a liability which the law imposes on a party only if, as, and when it is already determined to be a common carrier. Lloyd v. Haugh & Keenan Storage & T. Co., 223 Pa. 148, 21 L.R.A. (N.S) 188, 72 A. 516. It is not necessary, however, in order to constitute a party a common carrier, that it operate its means of conveyance between fixed termini, nor upon regular schedules, nor at a uniform or fixed tariff. Cushing v. White, 101 Wash. 172, L.R.A. 1918F 463, 172 P. 229; State v. Boyd Transfer & Storage Co., 168 Minn. 190, 209 N.W. 872; Collier v. Langan & Taylo Storage & Moving Co., 147 Mo.App. 700, 127 S.W. 435; Jackson Architectural Iron Works v. Hurlbut, 158 N.Y. 34, 70 Am. St. Rep. 432, 52 N.E. 665. And it in no way alters the character of a common carrier that it makes specific and individual contracts, either written or oral, for each business transaction. Smitherman & McDonald v. Mansfield Hardwood Lbr. Co., (D.C.) 6 Fed. (2d); Breuer v. Public Utilities Com., 118 Ohio St. 95, 160 N.E. 623; State v. Washington Tug & Barge Co., 140 Wash. 613, 250 P. 49. Nor can a carrier which holds itself out to the public as being a common carrier divest itself of that character because it has a secret or private intention to reserve the right to refuse to serve such parties as it objects to, or because it may, even upon occasion, exercise such right, particularly if such reservation and exercise thereof is in reality, though not ostensibly, merely for the purpose of divesting itself of the character and responsibility of a common carrier. Cushing v. White, supra; Stoner v. Underseth, 85 Mont. 11, 277 P. 437; Goldsworthy v. Public Service Com., 141 Md. 674, 119 A. 693; State v. Washington Tug & Barge Co., supra; Lloyd v. Haugh & Keenan Storage & T. Co., supra; Davis v. People, 79 Colo. 642, 247 P. 801; Sanger v. Lukens, (D.C.) 24 F.2d 226.

As was said by the Supreme Court of the United States in Terminal Taxicab Co. v. Kutz, 241 U.S. 252, Ann. Cas. 1916D 765, 60 L.Ed. 984, 36 S.Ct. 583, in determining whether the plaintiff in that case was a common carrier: "The important thing is what it does, not what its charter says." So in this, as in any other similar case, it is the general conduct of the actual business, and not isolated acts or statements, public or private, which fix the character of a common carrier on a party. And no form of subterfuge or evasion will prevent the courts from going behind the form to the substance.

The Lightning Delivery Company advertised for years in the daily papers and by posters. Samples of the nature of this advertising may be quoted as follows:

"A commercial trucking service that has proven successful for 32 years in Arizona."

"Our large fleet of fast trucks enable the shipper and other persons or firms requiring commercial hauling to get efficient, skillful and careful handling of his needs. Our household moving men are experts, and will handle your valued possessions as carefully as you would yourself."

"They can't come too big for us. Last week our large 15-ton trailer was requisitioned to move the Messenger press."

The testimony of the manager of the company was that it handled between twenty and twenty-five thousand separate transportation jobs per year; that it never advertised that it reserved the right to refuse business, or limit whom it would serve, though it did occasionally refuse to serve various parties, either because they were not good pay, because the company did not have the proper equipment, or because the transportation of the particular property would be generally detrimental to its business. Part of its business was transacted by special contracts, and part without any such contracts.

Arizona Storage & Distributing Company advertised in substantially the same manner as the Lightning Delivery Company. We quote samples:

"Ours is a government bonded and licensed service, thoroughly responsible. Our variety of scope, up-to-date van and truck service, hauling from any distances, our storage facilities, make ours a service that is ready for any demand, great or small. There is no question of our ability to handle your problems in the most efficient and money-saving manner."

"Our equipment and facilities are such that we can handle any type of hauling and storage."

It also operates in the same general manner as the Lightning Delivery Company, sometimes by special written contract and sometimes not, with its charges regulated according to the nature of the business, and occasionally rejected business tendered it for substantially the same reasons as its co-plaintiff.

Chambers Transfer & Storage Company advertised as follows:

"A Huge Fleet of Chambers Trucks...