East Tennessee & Western North Carolina Motor Transp. Co. v. Carden

• Decision Date: 06 June 1932
• Citation: 50 S.W.2d 230,164 Tenn. 416
• Parties: EAST TENNESSEE & WESTERN NORTH CAROLINA MOTOR TRANSP. CO. v. CARDEN et al.
• Court: Tennessee Supreme Court

50 S.W.2d 230

164 Tenn. 416

EAST TENNESSEE & WESTERN NORTH CAROLINA MOTOR TRANSP. CO. v. CARDEN et al.

Supreme Court of Tennessee.

June 6, 1932

Appeal from Chancery Court, Carter County; S.E. Miller, Chancellor.

Suit by the East Tennessee & Western North Carolina Motor Transportation Company against Dan Carden and others. From an adverse decree, the defendants appeal.

Decree affirmed, and cause remanded.

Albert C. Tipton, of Elizabethton, and Cox, Taylor & Epps, of Johnson City, for complainant.

Dugger & Reece, of Elizabethton, for defendants.

SWIGGART J.

Public Acts 1929, chapter 58, included in the Code of 1932 as section 5471 et seq., is a general statute comprehensive in its terms, designed to regulate the use of public highways by persons engaged in the business of transporting passengers and property for hire. Its constitutionality is challenged by the appellants herein.

The appellee, referred to herein as the transportation company complainant in the court below, is a corporation, engaged in the business of transporting passengers and freight between Johnson City and Shell creek, via Elizabethton, in Washington and Carter counties, for the conduct of which business it holds a "certificate of convenience and necessity," issued by the Railroad and Public Utilities Commission pursuant to the statute cited. The original bill avers that the several defendants, appellants, without such certificate were unlawfully competing with complainant for the patronage of the traveling public, to the injury and possible destruction of its business, by operating automobiles as common carriers of passengers, soliciting persons about to enter complainant's terminals, offering them reduced rates, and operating their automobiles a short distance ahead of complainant's motor busses, etc. The bill seeks injunctive relief.

Defendants made issues of fact by their answer, contending that the only business done by them on the routes covered by complainant's certificate was that of a private carrier, pursuant to contracts with individuals transported. The answer denies that the defendants solicited the patronage of the general public, as contended in the bill.

The chancellor determined the issues of fact in accord with the contention of complainant, ruling that the defendants had violated vested rights of the complainant, under its certificate of convenience and necessity, by operating their automobiles or taxicabs as "common carriers," on announced schedules, soliciting passengers, and stopping at intermediate points to take on and discharge passengers, in open, wilful, and unlawful violation of the provisions of the statute cited, and section 1 thereof.

On such finding of fact the chancellor made perpetual an injunction restraining the several defendants "from operating their taxicabs or other motor vehicles as common carriers" on the highways embraced in the complainant's certificate of convenience and necessity. The decree then proceeds more particularly to enjoin and restrain the defendants "from operating their said taxicabs or motor vehicles upon or in accordance with any schedule or schedules regular or otherwise, on and over any of said highways; and from stopping at any point or points upon said highways for the purpose of taking on and discharging passengers, other than their said private passengers, either upon the going or return trip, and from soliciting passengers or the traveling public or any patrons of complainant's lines or other persons, and from entering upon the premises of complainant in its regular station and terminals for the purpose of soliciting passengers in any way, whether by word of mouth, sign, blowing of horns or otherwise, and from establishing any fare or fares or charges for transportation, other than private charges contracted for as aforesaid, and from running upon said highways upon any schedule or schedules or otherwise for the purpose of intercepting passengers or inducing passengers to take passage upon their automobiles or motor vehicles, and from soliciting in any way or manner, and seeking out and picking up the prospective passengers or other persons at any place or time along said highways otherwise than under or in pursuance of private contract solicited and entered into between them and persons seeking such taxi service as defined in said Act and in this decree, at the starting or initial point of transportation for which said casual trip is contracted at the time upon the solicitation of the party or parties seeking such services."

The general terms of this decree being an injunction against the operation of the defendant's motor vehicles as common carriers, the particular acts enjoined are prohibited when done in the furtherance of such business, or as incidental thereto.

The decree expressly recognizes and preserves to the defendants the right to make "casual trips on call or under contract" on the routes involved, in the manner specified in section 5475 of the Code of 1932.

We find that a great preponderance of the evidence sustains the finding of fact made by the chancellor, that the defendants, at the time of the filing of the bill, were conducting their several businesses in the manner described in the bill, and that they were engaged in the business of soliciting and transporting passengers for hire, as common carriers of passengers.

It is contended by the appellants that the provisions of the statute, including control by the Railroad and Public Utilities Commission over rates and service to be rendered, are made to apply equally to common carriers and to private or contract carriers of passengers and freight, and that such legislative regulation of private or contract carriers is unconstitutional and void as in violation of the "law of the land" and "due process of law" clauses of the state and Federal Constitutions. Constitution of Tennessee, article 1, § 8, article 11, § 8; Constitution of the United States, Amendment 14. In support of this contention appellants cite Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264, and other decisions of the Supreme Court of the United States therein cited and referred to.

It is contended for the complainant that the statute, properly construed, is limited in its application to common carriers of freight and passengers, and does not regulate in any degree the business of private or contract carriers. The solicitor general for the state, as amicus curiae, has filed a brief in which it is insisted that the statute regulates the business of private carriers, as well as that of common carriers, but emphasis is placed on the language of the statute, section...