Kent v. Idaho Public Utilities Commission

• Citation: 469 P.2d 745,93 Idaho 618
• Decision Date: 27 May 1970
• Docket Number: No. 10396,10396
• Parties: James R. KENT and Gilbert Kent, Jr., dba Kent Bros. Transportation, Plaintiff-Appellant, v. IDAHO PUBLIC UTILITIES COMMISSION, Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 745

469 P.2d 745

93 Idaho 618

James R. KENT and Gilbert Kent, Jr., dba Kent Bros. Transportation, Plaintiff-Appellant, v. IDAHO PUBLIC UTILITIES COMMISSION, Defendant-Respondent.

No. 10396.

Supreme Court of Idaho.

May 27, 1970.

Anderson, Kaufman, Anderson & Ringert, Boise, for plaintiff-appellant.

Robert M. Robson, Atty. Gen., and Larry D. Ripley, Asst. Atty. Gen., Boise, for defendant-respondent.

SHEPARD, Justice.

James R. Kent and Gilbert Kent, Jr., do business under the name of Kent Bros. Transportation under the authority of a motor carrier permit issued by the Idaho Public Utilities Commission which authorizes the transportation of specified products over irregular routes within the State of Idaho.

In 1952 Avery Trucking Company, Inc. was issued a motor carrier permit for unrestricted carriage throughout the State of Idaho. Avery has been adjudicated a bankrupt and Kent Bros. purchased the Avery permit from the Trustee in Bankruptcy. Kent Bros. filed an application with the I.P.U.C. for transfer of the Avery permit to them. Since the Avery permit was issued for unrestricted carriage, it would, if transferred to Kent Bros., greatly expand their trucking operations. Various other trucking firms appeared and opposed the requested transfer of the Avery permit to Kent Bros. That opposition was primarily based on the grounds that Avery, during the time it held the permit, had not furnished the services authorized by the permit and the area of motor carrier operations within the State of Idaho was already so well served that the requested transfer would not be in the public interest.

The record discloses that Kent Bros. were advised by the I.P.U.C. to provide information regarding the past operations of Avery Trucking because the Avery permit might be subject to restriction under I.C. § 61-809 if Avery had intentionally failed to furnish the services authorized by the permit. The clarity and the extent of the Commission's advice is disputed by the parties.

Initially, Kent Bros. moved for a summary transfer and that motion was denied by the Commission. At a hearing held on Kent Bros.' request for transfer they testified as to their past activities under their motor carrier permit and their plans for using the Avery permit. At the hearing the Trustee in Bankruptcy and the attorney for Kent Bros. testified concerning the past activities of Avery in using its permit. However, no person having direct knowledge of Avery's past activities was produced as a witness. Certain records consisting mainly of Avery freight bills were produced. However, no witness was produced to verify the purported records of Avery and while those records were filed with the Commission, they were never introduced in evidence.

The Commission denied the request of Kent Bros. for the transfer of the Avery permit. It held that Kent Bros. had not provided adequate or sufficient information concerning the activities of Avery in the three years prior to the requested transfer and that such information was necessary for it to determine whether or not the requested transfer would be in the public interest. The Commission further held that the lack of any evidence excusing the failure of Avery to provide the authorized service for a period of three years amounted to 'intentional failure' to provide service within the meaning of I.C. § 61-809 That section provides:

'No permit issued under the provisions of this chapter or any portion thereof may be sold, assigned or transferred, without written approval of the commission that such transfer is consistent with the public interest. A hearing shall be held in the manner, and subject to the conditions, prescribed in the statute governing the issuance of the original operating ahthority to carriers except when such sale, assignment or transfer is made to members of the permit holder's family or to himself when organized as another form of business. The commission may on its own motion or on objection or protest to a transfer restrict the scope of any permit upon a showing of an intentional failure to furnish the service authorized by such permit.'

Kent Bros.' petition to the Commission for a rehearing was denied. Kent Bros. appeal to this Court from the order of the Commission and urge numerous assignments of error.

It should be initially pointed out that this Court may not weigh the evidence considered by the Commission other than deciding whether or not it is competent and sufficient to support the Commission's order. The Commission's rulings will be reversed only when it appears that it has failed to follow the law or has abused its discretion. Application of Forde L. Johnson Oil Company, 84 Idaho 288, 372 P.2d 135 (1962).

Appellants' first major contention is that the Commission erred in applying I.C. § 61-809 in its amended form. The Avery permit was issued prior to the 1963 amendment and appellants contend that to apply the statute as amended in 1963 would amount to retroactive application and an impairment of the obligation of the contract between the State and Avery Trucking. Appellants suggest that the right to transfer is a valuable property right which cannot be taken by retroactive legislation which changes the conditions and requirements for transfer.

We consider first whether the legislature intended the 1963 amendment of I.C. § 61-809 to apply retroactively. We agree that a statute should be applied retroactively only if the legislature has clearly expressed that intent or such intent is clearly implied by the language of the statute. Application of Forde L. Johnson Oil Company, supra; 1 Sutherland Statutory Construction, § 1963. We find that the wording of I.C. § 61-809 makes clear that it is designed to apply to prospective transfer of permits which had been granted prior to the 1963 amendment.

Appellants next urge that I.C. § 61-809, if applied retroactively, impairs the obligation of the contract between the State and Avery Trucking. Retroactivity in and of itself is, of course, not unconstitutional. If, however, substantive rights may be cut down by the retroactive effect of a statute, such construction should be avoided if possible. Appellants argue that the 1963 amendment to I.C. § 61-809 adds new matters to be considered by the Commission in determining whether to transfer a permit. They point out that those matters were not required to be considered by the Commission in a transfer hearing at the time of the original issuance of the Avery permit and that therefore Avery's capacity to transfer is diminished and its contractual power impaired. We do not agree. While the issuance of the original Avery permit constituted a contract between the State and Avery, it, as any other contract, had to be supported by consideration. That consideration on the one side was the issuance of the permit and on the other side the rendition of the service by Avery. As in all contracts, if one party failed to render what was incumbent upon him, the other party has a remedy for that breach. In this case the Commission could have found that Avery failed to provide the authorized services and so breached the contract in failing to render its part of the consideration. The State and the Commission, on its behalf, have a remedy for such breach. Those remedies provided by the legislature are I.C. §§ 61-808 and 61-809. I.C. § 61-808 provides:

'The commission may at any time, upon complaint by any interested party, or upon its own motion after a hearing had upon notice to any permit holder hereunder, when it shall be proven that such holder has violated or refused to observe any of the orders, rules or regulations of the said commission or any of the laws of the state of Idaho applicable to such permit holder, or at the request of such permit holder, by its order duly entered, suspend, revoke, alter or amend any permit issued under the provisions of this chapter. In addition the commission shall have the power and authority to suspend, upon twenty (20) days' notice to the permit holder, such permit for failure to pay any license, fee, tax, or other revenue now or hereafter provided by law, unless such permit holder shall have filed a bond with the state of Idaho in double the amount of such license, fee, tax or other revenue, and the permit holder in good faith protests and litigates the legality of the imposition of such license, fee, tax or other revenue or the amount thereof, or fails to file an annual report. From any order, ruling or decision made by the commission any party aggrieved may appeal to such tribunal in the manner now or hereafter provided for appeals from the public utilities commission. The commission may also hold joint hearings, and sit, with other commissions and tribunals of other jurisdictions having similar powers relative to motor carriers in interstate commerce under any law now existing or that may be enacted providing for such hearings.'

In the event that a permit holder does not render the service authorized by his permit, remedial action by the Commission is authorized under I.C. § 61-808. If a transfer of a permit is requested prior to action of the Commission under the authority of I.C. § 61-808, then § 61-809 is applicable and authorizes the Commission to act.

The change in the matters to be considered by the Commission when ruling upon a requested transfer in the 1963 amendment as compared with § 61-809 as it existed in 1952 is a valid exercise of the police power and a concern for the public good and is not therefore offensive. Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U.S. 372, 39 S.Ct. 117, 63 L.Ed. 309 (1919); Idaho Power Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914). That rule of law is applicable to Avery and the appellant Kent Bros. can succeed only to the rights held by Avery. 4 Corbin of Contracts § 892 (1951).

Appellants next contend that I.C. § 61-809 violates the Equal Protection Clause of the Constitution in...