Forde L. Johnson Oil Co., Application of

• Decision Date: 04 June 1962
• Docket Number: No. 9076,9076
• Citation: 84 Idaho 288,372 P.2d 135
• Court: Idaho Supreme Court
• Parties: Application of FORDE L. JOHNSON OIL COMPANY, Inc., for an IPUC Motor Carrier Permit. FORDE L. JOHNSON OIL COMPANY, Inc., Applicant-Respondent, and Idaho Public Utilities Commission, Grantor-Respondent, v. H. F. JOHNSON OIL COMPANY, Inc., Cantlay & Tanzola, Inc., Denver Chicago Transport Co., Inc., Clark Tank Lines Company, Inc., Pacific Intermountain Express Co., Protestants-Appellants.

Page 135

372 P.2d 135

84 Idaho 288

Application of FORDE L. JOHNSON OIL COMPANY, Inc., for an IPUC Motor Carrier Permit.

FORDE L. JOHNSON OIL COMPANY, Inc., Applicant-Respondent, and Idaho Public Utilities Commission, Grantor-Respondent, v. H. F. JOHNSON OIL COMPANY, Inc., Cantlay & Tanzola, Inc., Denver Chicago Transport Co., Inc., Clark Tank Lines Company, Inc., Pacific Intermountain Express Co., Protestants-Appellants.

No. 9076.

Supreme Court of Idaho.

June 4, 1962.

Raymond D. Givens, Boise, for appellants.

Maurice H. Greene, Boise, amicus curiae.

Frank L. Benson, Atty. Gen., John Kugler, Asst. Atty. Gen., Boise, for respondent, Idaho Public Utilities Commission.

George R. Phillips, Pocatello, and William S. Holden, Idaho Falls, for respondent, Forde L. Johnson Oil Co., Inc.

KNUDSON, Justice.

Forde L. Johnson Oil Company, Inc. (hereinafter referred to as applicant), is an Idaho corporation with its home office at Idaho Falls, Idaho. It is engaged in operating 22 service stations, a tire business and a diesel repair and equipment shop. On March 31, 1961, applicant filed with the Idaho Public Utilities Commission (hereinafter referred to as Commission) its application for a motor contract carrier permit to transport gasoline, kerosene, diesel fuels, heating oils, furnace oils and tractor fuels in intrastate commerce over irregular routes from Burley, Idaho, to points and places within a 150 mile radius of Pocatello, Idaho, under contract for Continental Oil Company (hereinafter referred to as Continental).

Appellants, all authorized motor common carriers, as protestants oppose the application.

Following a hearing the Commission granted the permit applied for. Appellants thereafter filed a petition for rehearing which was denied. This appeal is from the order granting the permit and the order denying a rehearing.

Under the assignments of error appellants contend that the findings (except one) of the Commission are contrary to the law and evidence. Appellants do not challenge the Commission's finding 'That the applicant has shown [itself] to be fit, willing and able to perform the service proposed'.

Among the statutes which must be considered in connection with the issue involving is I.C. § 61-802, as amended by Ch. 79, Session Laws of 1959, the pertinent portion of which provides:

'A permit shall be issued to any qualified applicant authorizing the whole or any part of his operations covered by the application made to the commission in accordance with the provisions of this chapter, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules and regulations of the commission thereunder, and that the proposed service, to the extent authorized by the permit, is or will be in the public interest, * * *.'

I.C. § 61-801, amended by Ch. 160, Session Laws of 1955, defines the term 'contract carrier' as follows:

'The term 'contract carrier' means any person which, under individual contracts or agreements, engages in the transportation (other than transportation referred to in paragraph (f)) by motor vehicle of passengers or property in commerce in the state for compensation.'

Appellant excepts to the Commission's finding 'That the right to contract is a matter of public interest and this right should be limited only when other public interest factors indicate a detrimental overall effect to the motor carrier industry.'

Until the legislature amended Ch. 291, Session Laws of 1951, the Commission, under the motor carrier act, was without authority to regulate or in any respect control contract carriers (Malone v. Van Etten, 67 Idaho 294, 178 P.2d 382, 383). In that case, which was decided in 1947, the Commission undertook to issue a cease and desist order, the effect of which was to cancel and terminate a contract entered into by a contract carrier. This Court held that in issuing such order the Commission exceeded its jurisdiction and that the order was void 'for the reason that it invaded the constitutional rights of appellants guaranteed by the Federal and State constitutions.' The right to make contracts is both a liberty and a property right, and is within the protection of the guarantee against the taking of liberty or property without due process of law, and, while that right is subject to reasonable restraint in the interest of public welfare, arbitrary and unreasonable restrictions and regulations are void. (Weaver v. Public Service Commission, 40 Wyo. 462, 278 P. 542) We do not agree with appellant's contention that 'the right to contract has nothing to do with public interest'. Although said finding is not controlling in this case, the subject of the finding is a proper factor to be considered.

Appellants complain of the Commission's finding that 'protestants did not show that they had or would have any definite substantial loss of intrastate traffic revenue'. Appellants argue that as protestants they are not initially required to show anything, the statutory burden of proof being upon the applicant to demonstrate that the proposed service is or will be in the public interest.

It is true that no duty rests upon protestant to show anything, however if a protestant desires that the Commission be informed as to the effect which the granting of the application will have upon him, it is incumbent upon the protestant to make such showing. Not only are the capabilities of the protesting carriers matters which are peculiarly within their knowledge, it could hardly be expected that applicant would be interested in introducing evidence tending to show that the granting of his application would have an adverse effect upon the carrier industry. There is no presumption that the service of existing carriers would be adversely affected by loss of potential traffic, especially if they have not handled it before. This Court has decided that no duty rests upon the Commission to protect the status quo of existing carriers, but it is required to consider the interest of the public. Application of Bermensolo, 82 Idaho 254, 352 P.2d 240; Malone v. Van Etten, 67 Idaho 294, 178 P.2d 382. It is clear that by the 1951 amendment to I.C. § 61-802 the legislature intended to provide a method under which any contract carriage could be allowed if and when the need of the shippers indicated that it was desirable and in the public interest.

The Commission found that any loss of traffic to some of the appellants, as a result of granting the permit applied for, would not be so consequential as to cause a serious change or impairment of their ability to provide adequate service to the State of Idaho. Appellants complain of this finding. The record discloses that only two of the protestants are presently engaged in performing any intrastate service for the Continental Oil Company. One services two key-lock terminals and the other services three terminals in Idaho. The record does not show what the operators receive as net income from such services nor was any estimate thereof given. However, said appellants stated that they would expect to lose some portion of the traffic they now handle for Continental Oil Company if the requested permit is authorized. The evidence indicates that Continental did not intend to use common carrier service in the area involved regardless of whether the permit is granted, except possibly at peak load periods. The Wescott Oil Co., a wholly-owned subsidiary of Continental handles most of its intrastate business. We cannot say that there is no reasonable basis for the finding made.

I.C. § 61-802, as it existed at the time the application here involved was made, provided in substance that a permit shall issue to any qualified applicant if it is found (1) that the applicant is fit, willing and able to perform the proposed services and conform to the rules and regulations of the Commission and (2) that the proposed service is or will be in the public interest. No issue exists as to the requirements provided for under (1) above. The principal inquiry here represented is what is meant by the requirement that the service is or will be in the public interest and does the evidence support the Commission's conclusion that the proposed service will be in the public interest. In Application of Bermensolo, 82 Idaho 254, 352 P.2d 240, this Court said that "Public interest' is not susceptible of precise definition'. However we consider a proper construction of the language used in I.C. § 61-802 requiring that the proposed service 'is or will be in the public interest' is that the legislature intended the proposed service shall be consistent with the public interest.

The statutes of this state do not specify any of the factors which must be considered by the Commission in determining whether issuance of a permit to a contract motor carrier is consistent with the public interest and necessarily such determination depends upon the particular circumstances of each case. It is clear that among the factors which should, as a general rule, be considered and weighed is the effect which granting the permit would have upon the service of the protesting carrier as well as the effect of a denial upon the shipper. In the instant case both such facts were considered by the Commission.

In this connection we deem it helpful to examine a provision of the Interstate Commerce Act. Under § 209(b) (49 U.S.C.A. § 309(b)) of said Act as amended in 1957 (71 Stat. 411, P.L. 85-163) the Interstate Commerce Commission is required, in determining whether issuance of a permit will be consistent with the public interest, and the national transportation policy, to consider

'(1) the number of shippers to be served by the applicant, (2) the nature of the service proposed, (3) the effect which granting the permit would have upon the service of the protesting carriers and (4) the effect which denying the permit would...