In re Public Utilities Commission's Investigation, 5729

• Decision Date: 08 July 1931
• Docket Number: 5729,5736
• Citation: 51 Idaho 56,1 P.2d 627
• Court: Idaho Supreme Court
• Parties: In the Matter of an Investigation by the PUBLIC UTILITIES COMMISSION OF THE STATE OF IDAHO, on the Operation of Stage or Truck Lines on U. S. Highway No. 10, Between Coeur d'Alene, Idaho, and Kellogg, Idaho. COEUR D'ALENE AUTO FREIGHT and the AUTO INTERURBAN COMPANY, Appellants, v. PUBLIC UTILITIES COMMISSION OF THE STATE OF IDAHO, GINGRICH BROTHERS, and the SPOKANE-WALLACE STAGES, INC., Respondents

1 P.2d 627

51 Idaho 56

In the Matter of an Investigation by the PUBLIC UTILITIES COMMISSION OF THE STATE OF IDAHO, on the Operation of Stage or Truck Lines on U. S. Highway No. 10, Between Coeur d'Alene, Idaho, and Kellogg, Idaho. COEUR D'ALENE AUTO FREIGHT and the AUTO INTERURBAN COMPANY, Appellants, v. PUBLIC UTILITIES COMMISSION OF THE STATE OF IDAHO, GINGRICH BROTHERS, and the SPOKANE-WALLACE STAGES, INC., Respondents

Nos. 5729, 5736

Supreme Court of Idaho

July 8, 1931

PUBLIC UTILITIES COMMISSION-REGULATION OF AUTOMOBILE TRANSPORTATION COMPANIES-CONSTITUTIONAL LAW.

1. Evidence held to support finding of Public Utilities Commission that operation of busses and trucks larger than limited by order, on narrow mountain road, was dangerous.

2. That change required in size of busses and trucks was inconvenient and expensive for carriers does not necessarily show Public Utilities Commission acted arbitrarily.

3. Judgment of Public Utilities Commission in regulating equipment of motor vehicle carriers, if sustained by reasonable showing, is not subject to review (Laws 1929 chap. 267, sec. 4).

4. On appeal from Public Utilities Commission, jurisdiction of supreme court is limited to determining whether commission pursued statutory authority and whether order complained of infringes constitutional rights (Laws 1921, chap. 72, sec. 3; Laws 1929, chap. 267, sec. 4).

5. Police power, in matter of right to use public roads, is restricted to regulatory supervision.

6. Power of Public Utilities Commission in supervising business of common carrier over public roads is plenary and may extend to exclusion (Laws 1929, chap. 267).

7. Order of Public Utilities Commission limiting size of busses and trucks going over mountain road held not invalid as beyond its legal province and as usurping police function (Laws 1927, chap. 260, secs. 34, 35; Laws 1929, chap. 267 sec. 4).

8. Public Utilities Commission, in prescribing rules and regulations for auto transportation companies, may adopt standard as to size of equipment (Laws 1929, chap. 267, sec 4).

9. Order of Public Service Commission pertaining to regulation of auto transportation companies held general when applied to all permit holders, though only small portion of highway is affected (Laws 1929, chap. 267, sec. 4).

10. Public Utilities Commission has no jurisdiction over private carriers (Laws 1929, chap. 267).

11. Act creating and defining powers of Public Utilities Commission in matter of regulating auto transportation companies held not unconstitutional as discriminatory (Laws 1929, chap 267).

APPEAL from the Public Utilities Commission of the State of Idaho.

Appeal from order limiting size of busses and trucks on U.S. Highway No. 10 between Kellogg and Coeur d'Alene, Idaho. Affirmed.

Order affirmed, with costs to respondents.

J. Ward Arney and McCarthy & Edge, for Appellants, cite no authorities on points decided.

Fred J. Babcock, Attorney General, and Maurice H. Greene, Assistant Attorney General, for Respondents.

The right of a state to regulate a private motor carrier is limited to police regulation of the highway, while the regulation of a common motor carrier extends to its business as well. (Frost v. Railroad Com., 271 U.S. 583, 47 A. L. R. 457, 46 S.Ct. 605, 70 L.Ed. 1101.)

1929 Sess. Laws, chap. 267, vests in the Public Utilities Commission the authority to regulate common carriers only. ( Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; Burns v. Lukens, 46 Idaho 603, 269 P. 596; Sanger v. Lukens, 24 F.2d 226.)

The Public Utilities Commission has jurisdiction to limit the size of the equipment used by appellants when the reduction is necessary for the safety of their operation. (Scioto Valley Ry. & Power Co. v. Public Utilities Com. of Ohio, 117 Ohio St. 64, 157 N.E. 475; Southern Motorways, Inc., v. Perry, 39 F.2d 145.)

The constitutional prohibition against regulating the business of a private motor carrier is no ground for asserting discrimination because of the regulation of a common motor carrier. (Reo Bus Lines Co. v. Southern Bus Line Co., 209 Ky. 40, 272 S.W. 18.)

MCNAUGHTON, J. Lee, C. J., and Budge, Givens and Varian, JJ., concur.

OPINION

MCNAUGHTON, J.

The Public Utilities Commission of Idaho of its own motion ordered a hearing for investigation and determination of the size of common carrier busses and trucks appropriate for use upon the public road designated as U.S. Highway No. 10, between the cities of Kellogg and Coeur d'Alene in this state. The hearing was set and noticed to be held December 29, 1930. A hearing was had upon that date at which all common carriers of freight or passengers over said highway between said points appeared and took part. After the hearing a general order was entered by the Commission to all holders of common carrier permits, both freight and passenger, restricting such permit holders to the use of trucks or busses not over 25 feet in length and 7 1/2 feet in width on that highway between Kellogg and Coeur d'Alene, effective February 16, 1931.

The Coeur d'Alene Auto Freight Company and the Auto Interurban Company moved for a rehearing. Upon the denial of their motion they appealed, and on March 27, 1931, at the regular term of this court at Pocatello, procured an order in this court requiring the Commission to show cause why the order should not be stayed pending the appeal. At the hearing on the return of the show cause order, by stipulation of counsel, the appeal was submitted upon its merits.

By appropriate assignments, but in different order, the appellants question the order of the Commission on the grounds: 1. That the evidence is insufficient; 2. That the order, in view of the evidence, is void as being arbitrary and unreasonable; 3. That the Commission is attempting to adopt a police regulation inconsistent with statutory regulations for that purpose; 4. That the order discriminates in favor of private and contract carriers as against common carriers.

(1) The record before us discloses that the highway in question passes over a ridge or divide between Coeur d'Alene and Kellogg. In the main it is a mountain road with frequent sharp turns and bends, especially on the westerly portion. From the summit toward Coeur d'Alene the roadway is 18 feet in width with many abrupt turns at hillside points where there is a steep bank immediately on one side of the 18-foot roadway and an abrupt declivity on the other side. The view of the road ahead is obstructed beyond the turn at these points and on three of the turns the curvature is of 116 degrees. It was demonstrated to be impossible for a 29-foot stage, such as the appellant Auto Interurban Company was then using on the highway, and an ordinary automobile to pass within the 18-foot roadway on those turns.

There was conflict in the testimony as to whether equipment above 25 feet in length and more than 7 1/2 feet in width was unsafe equipment if properly operated upon the road. On this issue the Commission found: "That the operation of any bus or truck exceeding 25 feet in length and 7 1/2 feet in width over that portion of U.S. Highway No. 10, between Coeur d'Alene and Kellogg, Idaho, is dangerous and unsafe to the employees, the traveling public and those making the ordinary use of the said highway." We think there is evidence competent to sustain the above finding, which is the basis of the order.

(2) Although some of the witnesses appear to have been prompted to take part in the hearing on account of complaint or grievance against a certain driver or other employee, yet there was much testimony disclosing there is danger attending the operation of this large equipment, in consideration of the condition of the road, which would be avoided by the operation of smaller busses and trucks. This testimony was neither arbitrary nor unreasonable, and we think such testimony afforded a reasonable foundation for the finding to that effect by the Commission.

In this behalf it should be noted the Commission found that accidents in connection with these operations had been rare notwithstanding the equipment complained of and the condition of the road, but from the Commission's conclusions this fact seems to be attributed to the unusual skill and carefulness of the company drivers. Nor do we think it can be said the Commission acted arbitrarily because the change required is...