In re Appeal of Beasley Bros.

• Decision Date: 26 June 1928
• Docket Number: 38168
• Citation: 220 N.W. 306,206 Iowa 229
• Parties: IN RE APPEAL OF BEASLEY BROTHERS
• Court: Iowa Supreme Court

220 N.W. 306

206 Iowa 229

IN RE APPEAL OF BEASLEY BROTHERS

No. 38168

Supreme Court of Iowa, Des Moines

June 26, 1928

Appeal from Jasper District Court.--H. F. WAGNER, Judge.

This is an application to the board of railroad commissioners by the Des Moines & Central Iowa Railroad Company for a permit to operate a bus line between Newton and Des Moines. The applicant is operating an interurban railroad between these terminals. The objections are filed by Beasley Brothers, who are operating a bus line between the same terminals. The commission issued a certificate, and Beasley Brothers appealed to the district court, where the action of the commission was affirmed. Beasley Brothers appeal to this court.

Affirmed.

Mowry & Jones, Parsons & Mills, and Bollinger & Block, for appellants.

Wilson & Shaw, C. R. Bennett, and Marion Hammer, for Des Moines Central Iowa Motor Transportation Company.

Dwight N. Lewis and Stephen Robinson, for Board of Railroad Commissioners, appellees.

MORLING J. STEVENS, C. J., and EVANS, FAVILLE, DE GRAFF, ALBERT, and KINDIG, JJ., concur. WAGNER, J., not participating.

OPINION

MORLING, J.

The objections filed with the commission are:

"1. That there is no necessity or demand for the service proposed by applicant. 2. That the granting of the certificate will not promote the public convenience and necessity. 3. That the bus line now operated between said towns and cities furnishes adequate service of that character. 4. That, if the proposed service is instituted, the public convenience will be seriously affected, in that the amount of business will not support the operation of such service."

In view of our conclusions upon the law, it will be sufficient to set out the evidence taken before the commission in very general outline, as follows: The interurban company is operating at a loss, and asks for the permit in part to enable it to recoup as well as on the ground of benefit to the public. There is testimony tending to show that the interurban line is suffering from bus competition in passenger service; that it may eventually have to cease business; and that the property of the company and of other concerns built along the line and depending upon its service will suffer great losses. The Rock Island Railroad also operates between these towns, but the freight service at intermediate stations is inadequate. The objectors, Beasley Brothers, were given their permit about three years before the hearing, over the opposition of the interurban company. They have a large investment in their bus line. They have asked permission to operate another round trip a day. Most of the testimony on the subject of public necessity and convenience consists of opinions for and against. There is testimony that on a good many of the trips the busses are full; that a large number of men living in Colfax, an intermediate station, and working in Newton, complain of the difficulty of getting back and forth; that, while the Rock Island could carry all the passengers, "they will not do it. Lots do not want to go on trains. They do not want to go when the train stops." It is further testified that there is some public demand for more facilities; that Altoona is one-half mile off the bus line; that:

"They sometimes go past Altoona with such a load that they have to pass by people waiting. It happens right along that the bus is loaded so you can't put more passengers in."

There is opposing testimony, and testimony to the effect that the objectors are ready to put on extra busses and take care of the passenger traffic.

The assignments of error are that the court erred in not reversing the decision of the commission, in not holding that there was no necessity for a new motor carrier line, and "in not holding that the applicant, representing only in fact the interurban, had no more right to a franchise than a stranger."

Appellant's points are:

"1. The appellate court, under the statute, arrives at an independent judgment on the evidence, and tries the case de novo, and is not limited as in writ of error or certiorari.

"2. There was no showing of necessity or public convenience to warrant a finding of the commission of public convenience or necessity.

"3. Where a motor bus carrier is operating on the line without a showing of failure or inability in such carrier to properly serve the public, a competing carrier is not entitled to a permit until at least complaint is made, and opportunity to render the service afforded."

Objectors contend in argument that the result of more competition will be to make all lines unprofitable, and in the end detrimental to, rather than promotive of, public welfare. Also that, acting upon their permit, they have made a large investment in their bus line, and are entitled to preference and protection.

At the outset, the question arises, What is the district court on such an appeal to determine? The statute makes no specific provision on this point, but says:

"Appeal may be taken from the decision of the commission by the applicant or any party who appeared in opposition to the application, to the district court * * * Upon appeal being taken, the secretary of the commission shall make and certify a transcript of all papers, records and proceedings in connection with such application and hearing and file the same with the clerk of said court * * * The appeal shall be submitted upon the transcript of the evidence and the record made before the commission, and the district court shall either affirm or reverse the order of the commission. An appeal may be taken from the judgment of the district court to the Supreme Court as from other judgments." Acts of the Forty-first General Assembly, Chapter 5, Section 10; Code of 1927, Chapter 252-A1.

The statute must be interpreted in the light of the Constitution. In this state, division of powers of government into three separate departments is not a matter of political philosophy, or theoretical merely. It is accomplished by the fundamental law.

"The powers of the government of Iowa shall be divided into three separate departments--the legislative, the executive, and the judicial: and no person charged with the exercise of powers belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted." Constitution of Iowa, Article 3, Section 1.

The district court is a constitutional court in which, with the Supreme Court and such inferior courts as the general assembly may establish, is vested the judicial power of the state. Constitution, Article 5, Section 1. The legislative or administrative powers of the state government can no more be conferred upon or delegated to a constitutional court by the legislature, or be assumed by such court, than may the legislative department arrogate to itself the functions of the judiciary. In the nature of things, there is no high wall or definite line of demarcation between the different governmental departments. Necessarily they gradually merge and blend into each other. Administrative officials must, on numerous occasions, in practice (subject to review by the courts), act judicially. Occasionally administrative functions to some degree must be exercised by courts. But in the main the three classes of governmental powers are separate and distinct. See City of Burlington v. Leebrick, 43 Iowa 252; Keller v. Potomac Elec. P. Co., 261 U.S. 428, 67 L.Ed. 731, 43 S.Ct. 445; State ex rel. Oregon R. & N. Co. v. Fairchild, 224 U.S. 510, 56 L.Ed. 863, 32 S.Ct. 535.

In the light of these considerations, what powers and duties on this subject are by the statute vested in the state railroad commission? The statute (Code of 1927, Chapter 252-A1, supra,) vests in the commission power and the duty to make periodic inspection of the equipment of motor carriers, to fix or approve rates, regulate and supervise accounts, schedules, service, and safety of operation, prescribe a uniform system of accounts, require reports, and "supervise and regulate motor carriers in all other matters affecting the relationship between such carriers and the traveling and shipping public." The commission is given power to prescribe rules and regulations. All its control, power, and authority over railroads and railroad companies, so far as applicable, are extended to motor carriers. It is made unlawful for any motor carrier to operate or furnish public service without first obtaining from the commission a "certificate declaring that public convenience and necessity require such operation."

"Before a certificate shall be issued, the commission shall, after a public hearing, make a finding that the service proposed to be rendered will promote the public convenience and necessity. If such finding be made, it shall be its duty to issue a certificate."

The applicant must make a satisfactory showing of financial ability.

"When the certificate is granted, the commission may attach to the exercise of the rights therein conferred such terms and conditions as in its judgment the public convenience and necessity may require, which shall include the right and duty to transport newspapers."

"For just cause, the commission may at any time alter, amend, or revoke any certificate issued."

The application must contain a complete description of the proposed route and equipment and schedule of service and a financial statement. Notice of date of hearing addressed to the citizens of each county must be published therein. Anyone "whose rights or interests may be affected shall have the right to make written objections to the proposed application." The board is required to consider the application and objections, "and may hear testimony to aid it in...