Haddad v. State

• Decision Date: 16 November 1921
• Docket Number: Criminal 513
• Citation: 201 P. 847,23 Ariz. 105
• Parties: JOHN M. HADDAD and JOSE BIANES, Appellants, v. STATE, Respondent
• Court: Arizona Supreme Court

201 P. 847

23 Ariz. 105

JOHN M. HADDAD and JOSE BIANES, Appellants, v. STATE, Respondent

Criminal No. 513

Supreme Court of Arizona

November 16, 1921

APPEAL from a judgment of the Superior Court of the County of Greenlee. Frank B. Laine, Judge. Affirmed as to Appellant Bianes, and reversed, with directions, as to Appellant Haddad.

Mr. L Kearney, for Appellants.

Mr. W J. Galbraith, Attorney General, Mr. O. E. Schupp, Special Assistant Attorney General, and Mr. George R. Hill, Assistant Attorney General, for the State.

OPINION

FLANIGAN, J.

This is an appeal from a judgment convicting appellants (jointly informed against) of violating an order of the Arizona Corporation Commission made pursuant to chapter 130, Acts of the Fourth Legislature, Session Laws of 1919. This act is entitled:

"An act providing for the supervision, regulation and conduct of the transportation of persons, freight and property for compensation over the public highways of the state of Arizona by automobiles, jitney busses, auto-trucks, stages and auto-stages."

And it provides a somewhat comprehensive scheme to regulate intrastate transportation of freight and passengers, by the vehicles mentioned, as common carriers for hire, under the regulatory and supervisory powers in such act conferred upon the commission. The broad extent of the powers thus granted is well exemplified by section 5 thereof:

"The Corporation Commission of the state of Arizona is hereby authorized and empowered to supervise and regulate every transportation company, person, firm or association, in this state engaged in transportation mentioned in this act; to fix the rates, fares, charges, classifications, rules and regulations of each such transportation company, firm or association operating under the terms of this act; to regulate the service and safety of operation, to require the filing of annual and other reports and other data; to supervise and regulate all corporations, persons, firms or associations in all matters affecting the relationship between such corporation, persons, firms, or associations and the traveling and shipping public. The Corporation Commission, in the exercise of jurisdiction conferred upon it by the Constitution of this state and by this act, shall have power and authority to make orders and prescribe rules and regulations affecting all transportation mentioned in this act, notwithstanding the provisions of any ordinance or permit of any incorporated city or town, and in case of conflict between any such order, rule or regulations, and any such ordinance or permit, the order, rule or regulation of the Corporation Commission shall in each instance prevail."

Section 3 enacts that none of the vehicles mentioned shall be operated as common carriers for hire between fixed termini unless the operator shall have first made application for and procured from the Commission what in the act is designated a "certificate of convenience and necessity." Of the hearing upon this application three days' notice is required to be given. The application is required to set forth (amongst other matters) the proposed time schedule, and a schedule of tariffs showing the passenger fares, or freight rates, to be charged between the several points, or localities, to be served.

Paragraph 5 of section 3 makes these provisions for the hearing on the application:

"(d) At the time specified for said hearing or at such later time as the same may be fixed by the Corporation Commission, a hearing upon said application shall be held by the Corporation Commission. After such hearing the Corporation Commission may issue a certificate of convenience and necessity as prayed for or refuse to issue the same, or may issue the same with modifications, and upon such terms and conditions as in its judgment the public convenience and necessity may require. No certificate of convenience and necessity shall issue until the Corporation Commission shall find that the public convenience and necessity requires the issuance of the same.

"(e) Each certificate of convenience and necessity issued under the provisions of this act shall contain the following matters:

"1. The name of the grantee.

"2. The public highway, streets or highways over which, and the fixed termini between which, the grantee is permitted to operate.

"3. The kind of transportation, whether passenger or freight, in which the grantee is permitted to engage, together with a statement of the number and of the maximum seating or tonnage capacity of the vehicle which the grantee is permitted to operate.

"4. The term for which the permit is granted, which term shall not exceed ten years.

"5. Such additional provisions and limitations as the Corporation Commission shall deem necessary or proper to be inserted in the permit.

"No certificate of convenience and necessity issued under the provisions of this act may be assigned or transferred without an order of the Corporation Commission authorizing such transfer."

Section 4 directly prohibits any transportation of freight or persons, for hire, by any of the vehicles mentioned, or by any "rent for hire car . . . over any road, street or public highway or between fixed termini, over which or between which" there is already a line in operation under a certificate of convenience and necessity, "until such . . . person . . . shall have secured permission from the Corporation Commission to so operate, and then only in strict accordance with such rules as the Commission may prescribe for such operation."

Section 8 is as follows:

"Every officer, agent or employee of any corporation, and every other person who violates or fails to comply with or who procures, aids or abets in the violation of any provision of this act, or who fails to obey, observe or comply with any order, decision, rule or regulation or requirement or any part or provision thereof of the Corporation Commission, or who procures, aids or abets any corporation or person in his failure to obey and order, decision, rule or regulation or any part of [or] provision thereof, is guilty of a misdemeanor and is punishable by a fine, not exceeding one thousand ($1,000.00) dollars, or imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment."

The information under which the appellants were convicted alleged that on or about December 21, 1920, they were operating an automobile as a "rent for hire" car, for the transportation of persons for compensation over the public highways of Greenlee county, Arizona, and that there was then and there between Clifton and Morenci, in said county, an automobile stage operated by Mountain Auto Company, under a certificate of convenience and necessity duly and regularly issued by the commission, according to fixed tariffs and schedule of service, as prescribed by said commission; that on the aforesaid day there was in full force and effect a certain order of the Commission known as General Order No. 70A, made on March 12, 1920, pursuant to the provisions of said chapter 130, which said order provided as follows:

"That the rate, or fare for rent service when performed between points from and to which a scheduled service is in effect shall not be less than 140 per centum of the rate of fare prescribed for such scheduled service; provided, further, that where three or more scheduled daily trips are made by stage lines, operators of 'for hire' cars may render service at stage line rates after the time the last stage is scheduled to leave."

It is then charged that on said day the defendants, before the last stage of said Mountain Auto Company was scheduled to leave Clifton, did carry certain persons as passengers in their said for hire car from Clifton to Morenci; that said Mountain Auto Company was then and there running on said day for the transportation of persons, in accordance with their schedule; that the said defendants, contrary to the order of the commission, did, for the transportation of the said passengers, take and accept from them as fare and compensation each the sum of one dollar, which fare was less than 140 per centum of the rate of fare prescribed for such scheduled service by the commission.

The information was demurred to on various grounds, mostly constitutional, and much the same objections were made to the introduction in evidence of General Order No. 70A. The rulings of the court sustaining the information and permitting the evidence are the basis of most of the errors assigned.

The information is attacked as being indefinite and uncertain as to the crime attempted to be charged. We do not think it is required, in order to state the offense charged, or the particular circumstances of it necessary to constitute a complete offense (sections 936, 943, Pen. Code), to include the particular circumstances of "the rates of fare, the schedules, time of departure and arrival of stages, fixed tariffs and schedules of service, or the termini of the route" of Mountain Auto Company, further than is stated in the information. Nor do we think that the information is subject to the objection that it does not state "the acts constituting the offense in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended," in contravention of section 934, Penal Code.

From the testimony given at the trial it appears that the appellant Haddad was himself the holder of a permit from the Commission to operate "two service cars" in Clifton, Morenci, Metcalf, and vicinity, at schedule rates of four dollars per hour, and "140 per cent of stage line rates" when "operated over routes of regular stage lines." We do not deem that fact material to the inquiry, for the reason that appella...