Gilmer v. Public Utilities Commission of Utah

• Decision Date: 04 June 1926
• Docket Number: 4351
• Citation: 247 P. 284,67 Utah 222
• Court: Utah Supreme Court
• Parties: GILMER v. PUBLIC UTILITIES COMMISSION OF UTAH et al

247 P. 284

67 Utah 222

GILMER v. PUBLIC UTILITIES COMMISSION OF UTAH et al

No. 4351

Supreme Court of Utah

June 4, 1926

Original proceeding on writ of review by T. M. Gilmer against the Public Utilities Commission and others, to review an order of said commission.

AFFIRMED.

Dey Hoppaugh & Mark, of Salt Lake City, for plaintiff.

Harvey H. Cluff, Atty. Gen., for the Commission.

Robert B. Porter, of Salt Lake City, for Los Angeles & S. L. Ry. Co.

Van Cott, Riter & Farnsworth, of Salt Lake City, for Denver & Rio Grande Ry. Co.

Frederick C. Loofbourow, of Salt Lake City, for Salt Lake & Utah Ry Co.

H. L. Mulliner, of Salt Lake City, for citizens other than Gilmer petitioning, who appeared before the Commission but not in the Supreme Court.

FRICK, J. GIDEON, C. J., and THURMAN, CHERRY, and STRAUP, JJ., concur.

OPINION

FRICK, J.

The plaintiff applied for and obtained the usual writ of review for the purpose of reviewing an order of the Public Utilities Commission of the state of Utah, hereinafter, for convenience, called the commission.

To afford the reader a better understanding of what is before this court for review, we deem it necessary to make a brief statement of the proceedings leading up to the particular order that is presented for review.

The record shows that in the year 1918, after the Public Utilities Act went into effect (Comp. Laws 1917, § 4775 et seq.), one Joseph Carling, pursuant to the provisions of said act, made application to the commission for permission to operate an automobile stage line for the transportation of passengers and express between Salt Lake City, Utah, and Fillmore, Utah. A protest opposing the application was duly filed, whereupon a hearing was ordered by the commission. After that hearing the commission made the following order:

"It is ordered that applicant, Joseph Carling, be, and he is hereby, granted a certificate of convenience and necessity, and is authorized to operate an automobile stage line for the transportation of passengers and express, between Salt Lake City, Utah, and Fillmore, Utah.

"Ordered further that applicant shall file with the commission, and post at each station on his route, a printed or typewritten schedule of rates and charges, together with schedule showing arriving and leaving time, and shall at all times operate in accordance with the rules and regulations prescribed by the commission governing the operation of automobile stage lines."

The record also shows that, pursuant to such order, Mr. Carling filed a schedule of trips and rates with the commission in which he stated that he would operate the stage line "one trip each way a week"; that is, he would make one trip to Fillmore from Salt Lake City and vice versa each week. The record further discloses that in January, 1924, Mr. Carling and the plaintiff herein filed their joint petition or application with the commission wherein they asked the commission for permission to transfer the permit or certificate of convenience and necessity theretofore issued to Mr. Carling to the plaintiff. At the hearing on the application, plaintiff was asked the following questions, which he answered as indicated:

"Q. What service do you contemplate giving between Salt Lake and Fillmore? A. The same service that Mr. Carling is now giving. Q. One trip each way per week? A. The same service that he is giving. Q. Your present proposition is to operate the time schedule and rate schedule of Mr. Carling? A. Yes."

After the hearing, the commission made the following order:

"After full consideration of all material facts that may or do have any bearing upon this case, we are of the opinion and decide that the public will be as equally well served by the applicant, T. M. Gilmer, as the present holder of the certificate, Joseph M. Carling; that Joseph Carling be permitted to relinquish his service; that his application to cancel his certificate be granted; that the same be canceled; that T. M. Gilmer be permitted to succeed him in the giving of said service; and that a certificate of convenience and necessity be issued to the said T. M. Gilmer, authorizing him to give the said service.

"It is ordered that Joseph Carling be, and he is hereby, permitted to relinquish his automobile stage line service, between Salt Lake City and Fillmore, Utah; that certificate of convenience and necessity No. 48 (case No. 148) issued to the said Joseph Carling, be, and it is hereby, canceled.

"Ordered further that T. M. Gilmer be, and he is hereby, granted permission to take over and assume the operations of said automobile passenger and express line between Salt Lake City and Fillmore, Utah, under certificate of convenience and necessity No. 214.

"Ordered further that T. M. Gilmer, before beginning operation, shall file with the commission and post at each station on his route, a schedule as provided by law and the commission's tariff circular No. 4, naming rates and fares and showing arriving and leaving time from each station on his line, and shall at all times operate in accordance with the rules and regulations prescribed by the commission governing the operation of automobile stage lines.

"Ordered further that this order shall become effective January 10, 1925."

Immediately after the foregoing order became effective, to wit, on the 13th day of January, 1925, plaintiff filed with the commission a schedule under which he proposed to make daily trips between Salt Lake City and Fillmore, and with the schedule he filed his application asking the commission to approve the schedule aforesaid. Protests were filed, and the matter was held in abeyance for reasons not material here. On March 31, 1925, the commission entered an order suspending the right to operate the stage line except upon the schedule hereinbefore referred to until the 29th day of July, 1925, or until the further order of the commission. After this there were more protests filed upon which further hearings were had. Finally, on September 30, 1925, the commission made the following order:

"It is therefore ordered that the applicant T. M. Gilmer's schedule P. U. C. U. No. 4, providing for additional automobile stage service for the transportation of passengers and express over the public highway between Salt Lake City and Fillmore, Utah, be not approved, and that the same be and remain permanently suspended, that is to say, until upon a proper showing made before the commission that public convenience and necessity require such additional service; that said schedule P. U. C. U. No. 4, as to rates to be charged, be, and the same is hereby, approved.

"It is further ordered that the order of the certificate of public convenience and necessity No. 214, issued by the Public Utilities Commission of Utah to T. M. Gilmer on the 30th day of December, 1924, in case No. 690, be, and the same is hereby, modified and expressly limited to conform to and with his time schedule P. U. C. U. No. 3, filed with the commission January 10, 1925, in case No. 767, providing for one round trip each week between Salt Lake City and Fillmore, Utah, being the same service applied for by him and that rendered theretofore by Joseph Carling under certificate of convenience and necessity No. 48 in case No. 148, issued to said Joseph Carling, June 10, 1919."

By a supplemental order, the foregoing order became effective November 1, 1925.

Application for a rehearing was duly filed, which was denied by the commission, and the applicant, within the time required by the Public Utilities Act, made application to this court for a writ of review as hereinbefore stated.

Plaintiff contends that the orders of the commission denying him the right to make daily trips between Salt Lake City and Fillmore should be vacated and annulled. So that there may be no mistake with regard to what plaintiff's counsel are contending for, we here set forth the opening statement as the same is contained in their printed brief. They say:

"Tersely stated, there is here presented, as one of the questions at issue, the following: Must there be a hearing with all the opportunities for delay necessarily resulting, each time a railroad company changes its time tables or a public utility improves conditions for the benefit of the public?"

Upon the other hand, in order to show what counsel for the commission contend for, we here append the opening statement contained in their brief as follows:

"The only questions involved in this appeal relate to the extent of the powers of the Utilities Commission. Can it regulate the practices of common carriers or public utilities? Can it determine what service is reasonably necessary? Can it, in granting a certificate of public convenience and necessity to an automobile transportation company, limit or decide what service will reasonably meet that convenience and necessity? Does it possess the power, after having granted a certificate of convenience and necessity to an automobile transportation company, to supervise and regulate the service that that transportation company may give?"

It now becomes necessary to refer to certain provisions contained in the Public Utilities Act. Comp. Laws Utah 1917, § 4798, where the act as first enacted is found, reads as follows:

"The commission is hereby vested with power and jurisdiction to supervise and regulate every public utility in this state, as defined in this title, and to supervise all of the business of every such public utility in this state, and to do all things whether herein specifically designated, or in addition thereto, which are necessary or convenient in the exercise of such power and jurisdiction."

Section 4818, as amended by Spec. Laws Utah 1919, c. 14, defines what constitutes a public utility, which...