Francis v. Allen

Citation96 P.2d 277,54 Ariz. 377
Decision Date27 November 1939
Docket NumberCivil 4167
PartiesH. L. FRANCIS, EDDY COBB, SAM J. SALYER, CLYDE CHESNUTT and JOE LAWRENCE, Appellants, v. W. T. ALLEN, Superintendent of State Highway Patrol; B. H. McAHREN, Superintendent of Motor Vehicle Division of State Highway Department; WILSON T. WRIGHT, AMOS A. BETTS and W. M. COX, Members of Arizona Corporation Commission, Appellees
CourtSupreme Court of Arizona

APPEAL from a judgment of the Superior Court of the County of Maricopa. Wm. G. Hall, Judge. Judgment affirmed.

Mr. L C. McNabb and Mr. Elmer Graham, for Appellants.

Mr. Joe Conway, Attorney General, Mr. A. R. Lynch and Mr. E. P Cline, his Assistants, for Appellees.

OPINION

LOCKWOOD, J.

This is an action by H. L. Francis and others, hereinafter called plaintiffs, against W. T. Allen, as superintendent of the state highway patrol, and other state officials, hereinafter called defendants, seeking to enjoin the latter from attempting to enforce the provisions of chapter 50 of the regular session laws of the fourteenth legislature, 1939 being an act relating to motor vehicle transportation, and asking for a declaratory judgment as to the rights and status of the parties under said act.

Defendants demurred to the complaint, on the ground it did not state a cause of action, and the demurrer being sustained, and plaintiffs declining to amend their complaint, judgment was rendered in favor of defendants, whereupon this appeal was taken.

The first and, indeed, the primary question for our consideration is the constitutionality of said chapter 50, supra. We shall summarize the act, rather than quote it in full, except so far as it may be necessary to give its exact language.

Section 1 defines "motor carrier" as meaning any person who transports or offers to transport persons by motor vehicle for compensation, without being authorized or required by law so to operate. "Motor carrier transportation agent" is defined as a person who acts as an intermediary between the public and a motor carrier in arranging for transportation.

Section 2 provides that no person shall act as a motor carrier transportation agent without first obtaining a license from the corporation commission.

Section 3 sets forth the form of the application for such license.

Section 4 provides:

"If an applicant for an agent's license is found, after hearing, to be unfit to properly perform the services proposed and to conform to the provisions of law with regard thereto, the commission shall deny the application."'

and then states what the license shall contain, if it is granted.

Section 5 fixes the fee for the license at one hundred dollars per year.

Section 6 provides for the suspension and revocation of the license if the agent

"1. engaged in false advertising or false representations; 2. arranged for, sold, offered for sale, or has negotiated for sale, transportation by any carrier not authorized by the Arizona corporation commission or the interstate commerce commission to carry on the business of a common carrier, which is conducting its business in a manner contrary to public interest or in violation of law or an order, rule, or regulation of the commission, or, 3. violated any provision of this act, or any federal enactment, rule or regulation."

Section 7 provides that a bond of ten thousand dollars be given by the agent "conditioned upon the faithful performance of any undertaking as a motor carrier transportation agent", and permits any person injured by breach of the condition of the bond to sue thereon.

Section 8 provides for records to be kept by the agents.

Section 9 sets forth what shall constitute acting as an agent.

Section 10 fixes the penalty for acting as an agent without license, or violating the conditions of the license, as a misdemeanor.

Section 11 excepts certain classes of transportation from the act.

Section 12 declares it to be the duty of the superintendents of the Arizona highway patrol and the motor vehicle division of the state highway department to enforce the act.

Sections 13 and 14 state that the provisions of the act are severable, and declare an emergency.

It is evident, upon a careful examination of the act, that it is an attempt to regulate by law what are commonly called "travel bureau agents", meaning thereby persons who bring together the traveling public and the operators of motor vehicles who are not engaged in business as regularly licensed common or private carriers for hire.

The first question is whether it is within the power of the legislature to regulate such business, and the second, if so, whether the regulations adopted are unreasonable and arbitrary.

Generally speaking, the question as to when a business or occupation, whether inherently or as a result of the manner in which it is conducted, is subject to regulation by the legislature, is one primarily for that body to determine. The courts are not interested in the question as to the wisdom of such regulation, but only whether the regulation runs contrary to constitutional guaranties, and whether it is arbitrary and unreasonable. There is business which is entirely legitimate ordinarily, but it may become, because of the manner in which it is carried on, a cause of such evils, vices and dangers as affect the safety, health, comfort or welfare of the public. When it has this effect, it is subject to regulation, or even to prohibition, by the state under its police powers, and in determining when the necessity for such regulation or prohibition arises, it will be presumed that the legislature knows the manner in which the business is carried on and believes that the necessity for regulation has arisen. Martin v. Railroad Com. of Texas, (Tex. Civ. App.) 93 S.W.2d 1155.

It is true that the supreme court of Texas, in Martin v. Railroad Com., 130 Tex. 153, 106 S.W.2d 653, held the act referred to in Martin v. Railroad Com., supra, to be unconstitutional, but it was on the ground that certain of its provisions were unreasonable and arbitrary, and it did not question that reasonable restrictions might have been imposed upon the business. We think it is a notorious fact that many evils have arisen because of the manner in which the business affected by chapter 50, supra, is carried on, which thoroughly justifies regulation, or even prohibition by the legislature if it so desires. As was said by the supreme court of Tennessee, in Bowen v. Hannah, 167 Tenn. 451, 71 S.W.2d 672, 674:

"The subject dealt with is illustrative of those new problems springing out of modern developments and conditions, to which it becomes necessary to apply age old principles, as new demands arise. The flexible and comprehensive doctrine of the police power is justifiably invoked, as it may always be for the public safety and welfare in the protection of personal and property rights. Those occupations which are inherently subject to misuse, out of which may readily come oppression and fraud and crime, may not only be regulated, hedged about with safeguards, as a condition of their doing, but may be altogether prohibited, in the wisdom of the Legislature, in exercise of the police power.... The principle applied may well be extended to the case now before us. It is a matter of common knowledge that danger to life and limb and property is attendant upon the practice of conveying unknown and unvouched for persons, or being conveyed by them in automobiles over the highways. This is especially true when the distances are considerable, through long stretches of sparsely settled districts. Prudent drivers no longer follow the practice of yielding to solicitations for transportation from strangers. And prudent travelers are wary of accepting invitations from strangers for such transportation. The opportunities afforded for holdups, robbery, kidnapping, and impositions of many kinds are unlimited, and illustrations of such happenings are common.

"Why then was it not only the privilege, but the duty of the Legislature to regulate most strictly the business of the intermediary who proposes to make a profit out of bringing together persons who seek to transport and be transported under such conditions? What is known as 'hitch hiking' is prohibited altogether by many ordinances and some statutes. These laws prohibit direct solicitation of such engagements, as conducive to danger to the...

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