O'Donnell's Exp., In re

• Decision Date: 14 January 1970
• Citation: 260 A.2d 539
• Parties: In re O'DONNELL'S EXPRESS. In re Clarification of CONTRACT CARRIER PERMIT NO. 222.
• Court: Maine Supreme Court

Page 539

260 A.2d 539

In re O'DONNELL'S EXPRESS In re Clarification of CONTRACT CARRIER PERMIT NO. 222.

Supreme Judicial Court of Maine.

Jan. 14, 1970.

Raymond E. Jensen, Portland, for plaintiff.

Frank E. Southard, Jr., Augusta, for Fox & Ginn, Inc., and Cole's Express.

Scott W. Scully, Portland, for Maine Central Railroad.

William M. Houston, Bangor, for Bangor & Aroostook Railroad Co.

Horace S. Libby, Augusta, for Maine Public Utilities Commission.

David R. Hastings II, Fryeburg, for amicus curiae.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE and WEATHERBEE, JJ.

DUFRESNE, Justice.

On November 22, 1933 the Public Utilities Commission (Commission) under Public Laws, 1933, c. 259, Sec. 5, issued to George C. O'Donnell a permit numbered 222 whereby he was authorized to furnish transportation service 'as a contract carrier within the general area and/or for the general purposes within which and for which George C. C'Donnell has been reqularly engaged in transporting freight and merchandise for hire over the highways of this State from March 1, 1932 to June 30, 1933 * * *.' This original permit was properly renewed thereafter according to law and by decree of February 25, 1957 the Commission authorized its transfer from George C. O'Donnell, an individual, to O'Donnell's Express (O'Donnell), the corporate appellant in the instant appeal. O'Donnell continued its carrier business under the general original permit as renewed, which was in full force and effect, when by order dated June 17, 1966 it was directed to appear before the Commission for the purpose of having its permit clarified pursuant to 35 M.R.S.A. § 1555(3). After hearing, the Commission on September 26, 1968 clarified the appellant's Contract Carrier Permit No. 222 by amendment which replaced the general language of the original permit as renewed and substituted for it the authority to engage in transportation wervice as a contract carrier as follows:

A. Oil barrels for the Texas Company from Houlton to Portland;

B. Plywood for the Northern Plywood Company or its successor from points in Aroostook County to Lewiston and Portland;

C. Used household furniture between points in Aroostook County and between points within said County, on the one hand, and points in Maine, on the other hand;

D. Food products, proceries and commodities generally sold in grocery stores and supermarkets, so-called, from Houlton and Presque Isle, Maine, to said grocery stores and supermarkets at points in Aroostook County with refused or damaged shipments on return;

E. Hardware and commodities generally sold in hardware stores or the hardware section of general or department stores from Houlton and Presque Isle, Maine, to said hardware stores at points in Aroostook County with refused or damaged shipments on return.

The Commission expressly characterized its action as amending the original permit only 'insofar as it now pertains to unclarified grandfather rights and exclusive of the specific authority granted by this Commission by its decree of July 30, 1947,' which 1947 decree is unquestioned and not involved in these proceedings.

In its points on appeal the appellant claims that the Commission erred as a matter of law in concluding that the intrastate transportation performed by it as a contract carrier during the test period was sporadic or infrequent and not of the regular nature defined by this Court in Cole's Express v. O'Donnell's Express, 1960, 156 Me. 211, 163 A.2d 360. It asserts that it was entitled as matter of right under the grandfather clause to a permit which included the authority to transport as a contract carrier general commodities from Portland, Augusta and Bangor, to points in Aroostook County and return, and that the denial thereof was error of law. In support of such charge, it accuses the Commission of disregarding the statutory definition of a contract carrier as one regularly engaged during the test period in transportation for hire within the stated statutory evidentiary formula of more than 2 trips in any 30-day or 6-month period, for the more restrictive Commission ruling that the appellant, in addition thereto, must make a comprehensive showing of transportation of the proven diversified commodities with reasonable regularity before the Commission can decree in clarification proceedings that the appellant had authority to engage in their carriage for hire under the grandfather clause of the statute.

Whether findings of fact by the Commission are warranted by law, is a question of law. Biddeford and Saco Gas Co. v. Portland Gas Light Co., 1967, Me., 233 A.2d 730, 736; Public Utilities Commission v. Cole's Express, 1958, 153 Me. 487, 492, 138 A.2d 466. Errors of law are committed if the Commission erroneously interprets and applies by its ultimate ruling the law applicable to the facts found by it. Central Maine Power Company v. Public Utilities Commission, 1957, 153 Me. 228, 230, 136 A.2d 726. And the burden to establish the error of law is upon O'Donnell, the complaining party. Central Maine Power Company v. Public Utilities Commission, supra.

Our problem is one of interpretation of the statutes regulating contract carriers. They date back to 1933 when our Legislature first imposed regulatory supervision and control over motor truck transportation upon the highways of the State. Public Laws, 1933, c. 259. The provisions pertinent to our problem read as follows:

Sec. 5. 'Contract Carrier' defined.

'The term 'contract carrier' as hereinafter used is intended to include all operators of motor vehicles transporting freight or merchandise for hire other than common carriers over regular routes; except that the term shall not be construed to include any person, firm or corporation who does not engage regularly in the transportation business but who on occasional trips transports the property of others for hire.'

Sec. 5. (Determination of 'who's who' in contract carrier operation)

'Whether or not any person, firm or corporation is engaging regularly in the transportation business within the meaning of this paragraph shall be a question of fact, to be determined by the commission.'

Sec. 5. (Purposes underlying contract-carrier-business legislation)

'It is hereby declared that the business of contract carriers, which term is intended to include all operators of motor vehicles transporting freight or merchandise for hire upon the public highways other than common carriers over regular routes, is affected with the public interest and that the safety and welfare of the public upon such highways, the preservation and maintenance of such highways and the proper regulation of common carriers using such highways require the regulation of contract carriers to the extent hereinafter provided.'

Sec. 5A. (Permit)

'No contract carrier shall operate any motor vehicle or vehicles for the transportation of property for hire on any public highway within this state without having obtained a permit from the commission.'

Sec. 5C. (Common carrier operations to be protected)

'No application for permit shall be granted by the commission until after a hearing, nor shall any such permit be granted if the commission shall be of the opinion that the proposed operation of any such contract carrier will impair the efficient public service of any authorized common carrier or common carriers then adequately serving the same territory over the same general highway route or routes.'

'A permit shall be granted as a matter of right when it appears to the satisfaction of the commission, after hearing, that the applicant has been regularly engaged in the business of a contract carrier as herein defined within this state, from the 1st day of March, 1932; and in such cases, operation may lawfully be continued pending the issuance of such permit, provided application therefor is made within 15 days from the effective date of this act.'

Sec. 5D. (Commission duties)

'The commission is hereby vested with power and authority and it is hereby made its duty to prescribe rules and regulations covering the operation of contract carriers in competition with common carriers over the highways of this state, and the commission shall prescribe minimum rates and charges to be collected by contract carriers which shall not be less than the rates charged by such common carriers for substantially the same or similar service. * * *'

Sec. 12. Penalty.

'Any person, firm or corporation violating any of the provisions of the preceding sections shall be punished by a fine of not less than $10 nor more than $500, or by imprisonment for not more than 11 months, or by both fine and imprisonment.'

At the next session of the Legislature, the lawmakers extended the powers of fact finders in relation to the factual determination of regularly engaging in the operation of a contract carrier transportation business to the supreme judicial court, the superior court or to a municipal court and in connection therewith they introduced the legislative clause which is the subject of our consideration in the instant case. The full sentence as amended reads as follows:

Public Laws, 1935, c. 146, Sec. 5.

'* * * Whether or not any person, firm or corporation is engaging regularly in the transportation business within the meaning of this paragraph shall be a question of fact, to be determined by the commission, the supreme judicial court, the superior court or a municipal court, but the making of more than 2 trips for hire during any 30-day period shall be deemed as regularly engaging in the transportation business.' (Emphasis supplied.)

At the same time, the Legislature amended Section 5(C) of the 1933 Public Laws by spelling out an added limitational concept in the issuance of contract carrier permits for further protection of the common carrier and significantly by express terms restricted the grandfather permit to the lawful operations of the contract carrier business.

Sec. 5(C)

'No application for...