Hissem v. Guran

• Decision Date: 03 March 1925
• Docket Number: 18771
• Citation: 112 Ohio St. 59,146 N.E. 808
• Parties: Hissem v. Guran Et Al.
• Court: Ohio Supreme Court

146 N.E. 808

112 Ohio St. 59

Hissem v. Guran Et Al.

No. 18771

Supreme Court of Ohio

March 3, 1925

Motor vehicles - Owner transporting for hire under definite contract - Not common carrier or motor transportation company, when - Private carriers not subject to regulation by Public Utilities Commission - Holder of certificate of convenience can not enjoin private carrier, when.

1. The owner of a motor-propelled vehicle engaged in the business of carrying and transporting property in such vehicle for hire over the highways of this state pursuant to a definite contract describing the property to be carried and the points to and from which the same shall be carried and the compensation to be paid, such owner not holding himself out to the public as willing to carry property for other persons and not in fact carrying property for any other persona than those with whom he has thus contracted, and not operating under any public franchise, is not a common carrier, and is not a motor transportation company as that term is defined in sections 614-2 and 614-84, General Code (110 O. L. 212, 213).

2. Persons, corporations, and firms who operate as such private carriers in carrying and transporting property over the highways of this state for hire are not subject to the Provisions of the law regulating the operation of mo or propelled vehicles, as enacted in Ohio Laws, 212 to 223 inclusive, General Code.

3. A motor transportation company folding a certificate of convenience and necessity under the provisions of the act regulating motor transportation Is not entitled to protection from competition as against owners of such privately operated motor vehicles over the same routes covered by such certificate.

Messrs Musser, Kimber & Huffman, for plaintiff in error.

Messrs. Whittemore & Motz, for defendants in error.

Mr. Henry S. Ballard and Mr. William J. Ford, amici curiae, for The Ohio Farm Bureau Federation.

MARSHALL C. J.

This case involves the interpretation of the Freeman-Collister Motor Transportation Act, but is not a review of any order of the Public Utilities Commission. The cause originated in the court of common pleas of Summit county, Ohio, at the suit of Hissem, operating a motor transportation company under a certificate of public convenience issued by the Public Utilities Commission, granting him the exclusive right to conduct and operate his business as a motor transportation company over a regular route between fixed termini in Summit county of, Ohio, seeking to enjoin Guran and Myers from operating a motor truck over the same route, without first obtaining a certificate of authority from the Public Utilities Commission.

The record discloses that Hissem was engaged in hauling milk to the city of Akron, for certain producers, and that Guran and Myers were also engaged in hauling milk from certain other producers located in the same community to the same market in the city of Akron. The trucks of both parties cover practically the same route; each rendering the same service, though for different employers. Guran and Myers were operating under a contract of employment with. A branch of the Summit County Milk Producers Association, whereby they were employed for hire to collect and transport milk and cream of the members of the said association, and no one else, to the White Hock Dairy Company of Akron, and no other person, upon a regular schedule of prices, depending upon the distance and the character of the highways covered. The Summit County Milk Producers Association, the employer of Guran and Myers, is a cooperative marketing association organized in accordance with Ohio laws (109 O. L., 50). Guran and Myers do not serve the public generally, or any person or firm other than members of the association, in accordance with the contract. They do not hold themselves ready to carry for all persons, indifferently, who may choose to employ them, neither have they ever accepted any public franchise or called the police powers of the state to their aid.

Upon these facts the Court of Common Pleas refused to enjoin, and upon error being prosecuted to the Court of Appeals that court affirmed the judgment. Upon error prosecuted to this court we are asked to construe and apply the provisions of the Freeman-Collister Act (110 Ohio Laws, 211, 223).

Section 614-2, General Code (110 O. L., 212) provides:

"Any person, or persons, firm or firms, copartnership or voluntary association, joint stock association, company or corporation, wherever organized or incorporated: * * * When engaged in the business of carrying and transporting per sons or property or both, in motor propelled vehicles of any kind whatsoever, for hire, over any public street, road or highway in this state except as hereinafter provided in Section 614-84, is a motor transportation company and as such is declared to be a common carrier."

Section 614-84, subdivision c, defines a motor transportation company:

"The term `motor transportation company,' when used in this chapter, means every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, owning, controlling, operating or managing any motor propelled vehicle not usually operated on or over rails, used in the business of transportation of persons or property or both, as a common carrier for compensation, over any public highway in this state."

The term, "motor transportation company," is first used in Section 614-2, and if we insert the definition of the term and write it into that section in the place of the term itself it will be found that the General Assembly has attempted by legislative fiat to constitute the person or company who may do the things therein referred to a common carrier. In this controversy this court is required to determine the limitations upon the power and authority of the General Assembly to declare certain persons and firms to be common carriers, when the business conducted by them is such as not to bring them within the common-law definition of common carriers. By Section 614-2 it is declared that any transportation for hire of persons or property in motor-propelled vehicles over the streets and highways of the state constitutes the operators of the vehicles common carriers. If common carriers, they are of course sub- ject to regulation both as to the rates to be charged and the service to be rendered. They are subject also to taxes and charges, and involved in expenses which do not have to be met by persons and firms not subject to public regulation. If they are common carriers their vehicles and other property are devoted to public use, and they cannot complain of public regulation, with the taxes, charges, expenses, and other inconveniences incident thereto. If their business has not in fact been dedicated to public use and service, any regulation would amount to a taking of private property for public use, and therefore be beyond the power of the state, unless just compensation were first paid in money.

As to what constitutes a common carrier, there can be no real controversy. It has been determined by numerous ...