In re Application of Garrett Transfer & Storage Co., Inc.

• Decision Date: 26 May 1933
• Docket Number: 5966
• Citation: 53 Idaho 200,23 P.2d 739
• Parties: In the Matter of the Application of the GARRETT TRANSFER & STORAGE CO., INC., to Extend Its Operations Under Second Amended P. U. C. I. Permit No. 14 Between Idaho Falls, Idaho, and Butte, Montana. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Protestant and Appellant, v. GARRETT TRANSFER & STORAGE CO., a Corporation, Applicant and Respondent
• Court: Idaho Supreme Court

23 P.2d 739

53 Idaho 200

In the Matter of the Application of the GARRETT TRANSFER & STORAGE CO., INC., to Extend Its Operations Under Second Amended P. U. C. I. Permit No. 14 Between Idaho Falls, Idaho, and Butte, Montana. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Protestant and Appellant, v. GARRETT TRANSFER & STORAGE CO., a Corporation, Applicant and Respondent

No. 5966

Supreme Court of Idaho

May 26, 1933

AUTOMOBILES - AUTO TRANSPORTATION COMPANIES-PERMIT-STATUTES, CONSTRUCTION OF.

1. Court takes judicial notice of contents of Journal of State Senate.

2. Eliminating by amendment from bill requirement of certificate of convenience and necessity and requiring only permit, for auto transportation companies, showed that legislature intentionally omitted such provision (I. C. A., sec. 59-801 et seq.).

3. Where statute provided that public utilities statutes, in so far as applicable, should apply to "motor propelled vehicle" carriers, which term was nowhere defined, and "auto transportation company" was defined, court assumed that legislature meant same thing (I. C. A., secs 59-101 to 59-714, 59-801 et seq.).

4. Where one statute refers to another and makes latter part of former in so far as applicable, court construes into former only such provisions of latter as are applicable and will give effect to former.

5. Statute requiring certificate of convenience and necessity from certain corporations did not apply to auto transportation company (I. C. A., secs. 59-108, 59-109, 59-116 to 59-121, 59-124, 59-125, 59-526 to 59-528, 59-801 et seq.).

6. Legislature has authority to designate carriers or utilities which must secure from Public Utilities Commission certificate of convenience and necessity before beginning operations (I. C. A., secs. 59-526 to 59-528).

7. On application by auto transportation company for permit to extend operations, Public Utility Commission did not err in not considering evidence relative to granting or refusal of certificate of convenience and necessity (I. C. A., secs 59-526 to 59-528, 59-810 et seq.).

8. In issuing permit to auto transportation company for extension of operations, Public Utilities Commission exercised discretion granted by statute, where all evidence offered by contestant was admitted but which was insufficient to show that applicant had not complied with statutory requirements (I. C. A., sec. 59-804).

APPEAL from the Public Utilities Commission.

Application for a permit to extend the operation of an auto transportation company, granted, and motion for rehearing denied by Commission. Affirmed.

Order sustained. Costs to applicant.

Geo. H Smith, H. B. Thompson and Chas. A. Root, for Appellant.

The power to supervise and regulate a public utility comprehends the right and duty to deny a permit or license to commence operations in the absence of a showing of public need for the service proposed. (Maine Motor Coaches v. Public Utilities Com., 125 Me. 63, 130 A. 866; Northern P Ry. Co. v. Bennett, 83 Mont. 483, 272 P. 987; In re James (1926), 99 Vt. 265, 132 A. 40; Blashfield on Automobile Law, p. 87.)

F. E. Tydeman, for Respondent.

The commission did not err in its order No. 362 in granting the application without a showing of public convenience and necessity.

The law does not contemplate or provide that an applicant should show public convenience and necessity before granting a permit. The regulation of auto transportation companies is of recent development. The objects, method of operation and service are so different from other utilities that the legislature saw fit to make separate and distinct provisions to govern. ( MacFayden v. Public Utilities Consolidated Corp., 50 Idaho 651.)

GIVENS, J. Budge, C. J., and Morgan, Holden and Wernette, JJ., concur.

OPINION

GIVENS, J.

The Garrett Transfer & Storage Co. applied to the Public Utilities Commission for a permit, under the provisions of sec. 59-803, I. C. A., to operate or extend its motor bus lines between Idaho Falls, Idaho, and Butte, Montana, by way of Roberts, Hamer and Dubois. The application was contested by the Oregon Short Line Railroad Company, and the only point involved is whether the Public Utilities Commission, in granting the permit, should have considered the provisions of secs. 59-526, 59-527, 59-528, I. C. A., it being the contention of the protestant railroad company that by sec. 59-817, I. C. A., it is necessary for the commission to consider those things pertinent to the granting or refusal of a certificate of convenience and necessity in issuing a permit to an auto transportation company, as defined and covered by chap. 8, title 59, I. C. A.

The determination of this matter involves the consideration of the enactment of chap. 8, which originated as chap. 267, Sess. Laws of 1929. The legislative record shows that the original House Bill 271 required, as a condition precedent to an auto transportation company doing business, the issuance of a certificate of convenience and necessity, but that the Senate, March 5, 1929, as shown by its Journal, pages 377-379, of which the court takes judicial notice (State v. Eagleson, 32 Idaho 280, 181 P. 935), by amendment, eliminated the provisions with regard to a certificate of convenience and necessity and required the issuance of only a permit. Such elimination has been considered by this court to indicate that the legislature intentionally omitted such provision. (In re Segregation of School Dist. No. 58, 34 Idaho 222 at 227, 200 P. 138. See, also, Rieger v. Harrington, 102 Ore. 603, 203 P. 576; State v. Wibaux County Bank, 85 Mont. 532, 281 P. 341; State v. Hays, 86 Mont. 58, 282 P. 32; Samples v. Board of Commrs., 87 Colo. 227, 286 P. 273.)

Protestant, however, contends that sec. 59-817 shows that the legislature intended not only to include, by reference, the provisions with regard to a certificate of convenience and necessity, but all other provisions of the general Public Utilities Law, chapters 1 to 7 of the above title, the language used being that "all provisions of the public utilities law . . . . shall, in so far as applicable, apply to all motor propelled vehicle carriers subject to the provisions of this chapter."

In the first place, sec. 59-802 provides that it shall be unlawful for any "motor carrier," as the term is defined in the chapter, to operate without a permit. Sec. 59-817 also uses the words "motor propelled vehicle," which, however, is nowhere defined in chap. 8. The term "auto transportation company" is defined, and we assume that is what the legislature meant by "motor propelled vehicle."

It will be noticed, however, that the word "permit" is used and not "certificate," and that the Senate struck from the title of the original bill the words "certificate of convenience and necessity," and inserted in lieu thereof the word "permit."

This court, construing the phrase "in so far as applicable," in a situation similar to that considered herein, has held that where one statute refers to another and makes the same a part of the former in so far as the same is applicable, in determining what provisions are applicable, the court is called upon to construe into the former as a part thereof only such provisions of the latter as are applicable and will give force and effect to the former statute. (Gillesby v. Board of Canyon County Commrs., 17 Idaho 586, 107 P. 71, and followed, to the same effect, in Hodges v. Tucker, 25 Idaho 563, 138 P. 1139.)

Turning now to secs. 59-526, 59-527 and 59-528, I. C. A., a certificate of convenience, by the original Public Utilities Law, was required only for a street railroad corporation, gas corporation, electrical corporation, telephone corporation or water corporation. These various organizations as defined by secs. 59-108, 59-109, 59-116, 59-117, 59-118, 59-119, 59-120, 59-121, 59-124 and 59-125, I. C. A., show that the only carrier of persons and things required to secure a certificate of convenience and necessity was a street railroad, which term, by sec. 59-108, expressly did not include a railway constituting or used as a part of a commercial or interurban railway, and subdivision e of sec. 59-801, defining the term "auto transportation company," expressly excluded from the scope of chap. 8, hence of chaps. 1 to 7, title 59, I. C. A., an auto transportation company operating exclusively within the limits of any incorporated city or village or territory contiguous to such city or village, thus positively indicating that an auto transportation company was not considered as in any way similar to a street railway company. Therefore, by a comparison of these statutory provisions it is apparent that the language used excludes from the scope of a certificate of convenience and necessity, so far as the transportation of things and people are concerned, any utility or common carrier not operating as a street railway company, and thereby the terms of secs. 59-526, 59-527 and 59-528 would not be applicable to an auto transportation company operating within the terms of chap. 8.

Protestant relies upon Maine Motor Coaches v. Public Utilities Commission, 125 Me. 63, 130 A. 866, and Northern Pacific Ry. Co. v. Bennett, 83 Mont. 483, 272 P. 987, in support of its contention. These cases, however, are not applicable because of the difference in the statutes there construed and here considered. In the Maine case, so far as we have been able to discover, from an examination of its general public utilities statute, Rev. Stats. of Maine, 1930 chap. 62, p. 1024, and the various public laws referred to in the decision, the general statute did not require any certificate of convenience and necessity, and the Maine court construed the word "permit," in the special jitney act, to mean ...