Interstate Transit Co. v. Derr
| Decision Date | 12 July 1924 |
| Docket Number | 5566. |
| Citation | 228 P. 624,71 Mont. 222 |
| Parties | INTERSTATE TRANSIT CO. v. DERR, CO. ATTY., ET AL. |
| Court | Montana Supreme Court |
Rehearing Denied Sept. 10, 1924.
Appeal from District Court, Missoula County; A. N. Whitlock, Judge pro tem.
Suit by the Interstate Transit Company against Mark Derr, as County Attorney of Lake County, Mont., and others. From an order denying an injunction, plaintiff appeals. Reversed and remanded.
Harry H. Parsons, of Missoula, for appellant.
E. G Toomey and L. H. Loble (amicus curiæ), both of Helena, for respondents.
This is an action in injunction. The cause came on for hearing upon an order to show cause why the defendants should not be enjoined from interfering with and preventing the plaintiff from operating for hire a line of motor busses between the city of Wallace, in the state of Idaho, and the city of Kalispell, in the state of Montana. It was submitted upon the admitted facts contained in the pleadings, and no testimony was introduced.
It appears from the allegations of the complaint admitted by the answer, that the plaintiff, a Montana corporation, since the 1st day of June 1924, has been the owner of and engaged in the operation of an automobile bus or stage line having its western terminus in the city of Wallace, Idaho, and its eastern terminus in the city of Kalispell, Mont., and passing though the counties of Missoula, Lake, and Flathead in the state of Montana. Such line is, and has been since the 1st day of June, engaged in the transportation of passengers and baggage between such points for hire and profit, the busses or automobiles being operated daily. The plaintiff is engaged in interstate commerce between such points, and no question is raised as to the good faith of the operation or the adequacy of the facilities furnished.
The plaintiff made application to the Board of Railroad Commissioners to operate interstate business between Wallace Idaho, and Kalispell, Mont., offering to comply with the law and all reasonable rules and regulations, which was denied, the reasons assigned therefor being: (1) That there is adequate service between Missoula and Kalispell; and (2) that, by the issuance of such a permit to the plaintiff, others engaged in the carriage of passengers and freight by automobile between those points would probably not be able to withstand such competition. It does not appear whether the plaintiff was given a hearing.
Subsequently the plaintiff made proper application to the Board of Railroad Commissioners for the issuance of a permit to conduct such interstate business from Missoula, Mont., to Wallace, Idaho, offered to furnish bonds, and comply with the law and all rules and regulations of the board. On the same day, June 10, 1924, the board declined and refused to issue such permit, and there is nothing in the record to indicate the plaintiff was accorded any hearing on its last application.
The plaintiff began operation between Wallace, Idaho, and Kalispell, Mont., and the defendants have been causing the arrest of the operators of its busses in the various counties of the state of Montana through which they passed, and have announced that they would continue to do so, acting under authority alleged to be given by chapter 154 of the Laws of 1923.
An injunction was by the court denied, and the case is now before us on appeal from the order denying an injunction. The determinative questions necessary to be considered by us in disposing of this appeal are: (1) Has the state authority to impose regulations on carriers engaged in interstate commerce? (2) May the Board of Railroad Commissioners arbitrarily refuse to permit an interstate automobile carrier of freight and passengers to operate over the highways in Montana? and (3) has it done so in the instant case? These questions will be considered and disposed of together.
Chapter 154 of the Laws of 1923, which is here involved, by its title purports to be an act to provide for the supervision and regulation of transportation of persons and property for compensation over any public highway in Montana by motor vehicles, defining transportation for compensation; and providing for supervision and regulation by the railroad commission, and providing for the enforcement of the act and punishment for violation thereof. The second section provides that no one shall operate motor vehicles for such transportation for hire over the highways of Montana except in accordance with this act. Section 3 gives the railroad commission supervision, and the power to inquire into rates, fares, and charges and to prescribe reasonable ones, and to require adequate facilities, and to require the filing of annual reports and such other data as may be required by the commission. The act likewise leaves cities and towns free to enact and enforce reasonable regulations and ordinances, including licenses. Section 4 reads as follows:
Section 6 requires the filing with the railroad commission of a bond, or taking liability insurance to provide for compensation for any injuries to persons or property resulting from the operation of vehicles. The section also requires a bond for the payment of all fees due the state, and for the faithful carrying out of the permit granted. Section 7 gives the railroad commission full power in the matter, provides for rehearing and actions for review in the state courts and appeals to the Supreme Court. Section 8 requires the payment of an annual license fee in accordance with the weight and size of the vehicle, provided that such fee shall be used for the expense of administering the act. Section 9 makes a violation of the act a misdemeanor punishable by fine or imprisonment, or both. Section 10 reads as follows:
"Neither this act nor any provisions thereof shall be applied or be construed to apply to commerce with foreign nations or commerce among the several states of this Union except insofar as the same may be permitted under the Constitution of the United States, treaties made thereunder and the acts of congress."
Section 11 provides that if any section or portion of the act should be held unconstitutional such holding shall not affect the remaining portions. The act was approved March 12, 1923.
The act, like almost all of the regulatory statutes passed in the different jurisdictions in the last few years, contains the common requirement that the applicant must obtain a certificate of convenience and necessity. The theory underlying such a requirement is the theory which underlies public service laws generally, based upon the principle of regulated monopoly. The principle is well set forth in a recent Illinois case, where the regulation of motor vehicles was involved: West Suburban Transp. Co. v. Chicago & West Towns Ry. Co., 309 Ill. 87, 140 N.E. 56, P. U. R. 1923E, 150. The court uses this language:
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