Malone v. Van Etten

• Decision Date: 04 February 1947
• Docket Number: 7327
• Citation: 67 Idaho 294,178 P.2d 382
• Parties: MALONE et al. v. VAN ETTEN et al
• Court: Idaho Supreme Court

178 P.2d 382

67 Idaho 294

MALONE et al. v. VAN ETTEN et al

No. 7327

Supreme Court of Idaho

February 4, 1947

Appeal from Public Utilities Commission.

Reversed and remanded with instructions.

Jess Hawley, Jr., and Oscar W. Worthwine, both of Boise, for appellants.

The legislature of the State of Idaho never intended to give the Public Utilities Commission jurisdiction over contract carriers. H. B. No. 271 (Appendix "A"); 50 Am.Jur p. 321, para. 328. 50 Am.Jur., p. 332, para. 330; Oregon Short Line R. Co. v. Pfost, 53 Idaho 559, 27 P.2d 877; I.C.A. §§ 59-803 to 59-809, inclusive; Smallwood v. Jeter, 42 Idaho 169, at pages 186, 187 244 P. 149; Burns v. Lukens, 46 Idaho 603, 269 P 596; In re Public Utilities Commission of Idaho (Coeur d'Alene Auto Freight v. Public Utilities Commission of Idaho) 51 Idaho 56, 1 P.2d 627.

The cease and desist order invaded the constitutional rights of the appellants guaranteed to them by the Federal and State Constitutions. I.C.A. § 59-626; PUC Rule IX, subdivision 9; Frost v. Railroad Commission of State of California, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101, at page 1107, 47 A.L.R. 457; State v. Nelson, 65 Utah 457, 238 P. 237 at pages 239, 240, 42 A.L.R. 849; Weaver v. Public Service Commission of Wyoming, 40 Wyo. 462, 278 P. 542, at page 544; Mooney v. Tuckerman, 50 R.I. 37, 144 A. 891; Miles v. Enumclaw Co-operative Creamery Corporation, 12 Wash.2d 377, 121 P.2d 945, at page 946.

Under the showing made by applicant Malone the commission had no authority to deny him a permit to operate as a common carrier. Monroe v. Railroad Commission, 170 Wis. 180, 174 N.W. 450, 9 A.L.R. 1007, at page 1011; H. B. No. 271 (Appendix A); I.C.A. §§ 59-526, 59-527; Arkansas Railroad Commission v. Independent Bus Line, 172 Ark. 3, 285 S.W. 388; Richland Gas Co. v. Hale, 169 La. 300, 125 So. 130; I.C.A. § 59-804; Hayes v. Los Angeles County, 99 Cal. 74, 33 P. 766; Shea v. Owyhee County, 66 Idaho 159, 156 P.2d 331, 157 A.L.R. 391, at page 395.

Fred M. Taylor and Maurice H. Greene, both of Boise, for respondent Van Etten.

The Public Utilities Commission has the discretion to deny an application for permit under the Auto Transportation Act. In re Garrett Transfer & Storage Co., 53 Idaho 200, 23 P.2d 739.

Whether "good cause" has been established rests in the discretion of the Commission after giving consideration to all of the evidence. People v. Sessions, 62 How.Prac.N.Y. 415; Christensen v. Anderson, 24 Tex.Civ.App. 345, 58 S.W. 962; Lapham v. Oakland Circuit Judge, 170 Mich. 564, 136 N.W. 594.

A public service commission is a specialized body authorized by legislative action to perform certain administrative functions. Within the powers granted to it, the Courts will not interfere with the exercise of a commission's judgment. Watson Bros. Trans. Co. v. U.S. D.C., 59 F.Supp. 762; Application of Union Pac. R. Co., 65 Idaho 221, 142 P.2d 575.

Transportation for compensation as a business under private contract constitutes the transporter an auto transportation company. I.C.A. § 59-801; Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264.

The right to regulate contract carriers by motor truck is now beyond dispute. Fordham Bus Corporation v. U.S. D.C., 41 F.Supp. 712; Morel v. Railroad Com'n, 11 Cal.2d 488, 81 P.2d 144; Public Service Com'n v. Grimshaw, 49 Wyo. 158, 53 P.2d 1, 109 A.L.R. 534; Cornell Steamboat Co. v. U.S. D.C., 53 F.Supp. 349; Stephenson v. Binford, D.C., 53 F.2d 509; Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155, 81 A.L.R. 1402.

Robert Ailshie, Atty. Gen., and J. R. Smead, Asst. Atty. Gen., for respondent Public Utilities Commission.

Every motor carrier operating between fixed termini or over a regular route for compensation, is an auto transportation company, exceptions excluded. I.C.A. § 59-801.

There is no distinction between contract and other carriers recognized in our law. Curtis v. Pfost, 53 Idaho 1, 21 P.2d 73.

There is nothing in any degree unlawful in inclusion of contract and common carriers in the same regulative classification. Berry on Autos, 5th Ed., No. 1715, pp. 1225-35 seq.; Frost v. Railroad Commission of State of California, 197 Cal. 230, 240 P. 26; Curtis v. Pfost, 53 Idaho 1, 21 P.2d 73; Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; Garrett Transfer & Storage Co. v. Pfost, 54 Idaho 576, 33 P.2d 743.

There is a distinct tendency toward inclusion of contract carriers with common carriers in states where a distinction has heretofore existed. Carrier's Prot. Comm. v. Jacobs, 20 P.U.R.(NS) 175; 67 P.S. § 461a et seq.; Hadley's Ex. v. Dunion, 20 P.U.R.(NS) 526; Cal.Stats.1917, p. 330; Cal.Stats.1919, p. 458; Montana Laws 1923, Ch. 154; Montana Laws 1931, Ch. 184; See "Re special Ind. Contracts of Private Motor Carriers," 21 P.U.R.(2) 165 (Ohio); Title 49 U.S.C.A. § 309.

Budge, Chief Justice. Holden, Miller, and Ailshie, JJ., and Sutphen, D. J., concur.

OPINION

Budge, Chief Justice.

This is an appeal from certain orders of the Public Utilities Commission of the State of Idaho in the above entitled proceeding. Briefly stated, the following material facts appear in the record.

July 1, 1944, Edward Van Etten became the owner of, and operated what was known as Nock Transportation Company, a common carrier; C. E. Whitmore became a common carrier of passengers and express during the latter part of July, 1944; both of the above-named carriers were operating between Boise and Stibnite. The latter part of April, 1946, Van Etten ceased operating between Boise and Stibnite; appellant Malone filed an application for permit as a common carrier May 10, 1946, to operate between Boise and Stibnite. Hearing was had on Malone's application June 14, 1946, and said application denied, by Order No. 3057, July 15, 1946.

It was disclosed at the hearing that Malone was operating between Boise and Stibnite as a private carrier under contracts with Stibnite Mercantile Company, Bradley Mining Company, and Ralph Rudolph; that his income under said contracts amounted to $ 700 a month; that his operations were strictly confined to, and he served only the parties named in the contracts. July 15, 1946, by Order No. 3057, in addition to denying appellant's application to become a common carrier, the Commission issued a cease and desist order effectually canceling appellant's contracts.

Subsequent to the denial of Malone's application for a permit as a common carrier, applications were filed by Stibnite Mercantile Company, Bradley Mining Company, and the Village of Stibnite for leave to intervene, for a stay of the cease and desist order, and for rehearing. July 30, 1946, Order No. 3068 was filed by the Commission wherein said application to intervene was denied, and the application for rehearing was stricken from the records. On the same date Order No. 3075 was filed which reads, in part, as follows: "That said application to intervene at this time be denied; that the petition for rehearing be stricken; and that decision as to stay of the cease and desist order be reserved until a petition for rehearing shall have been filed by James O. Malone, the applicant for permit."

August 3, 1946, Malone filed application for rehearing, and on the same date Order No. 3076 was filed by the Commission permitting Stibnite Mercantile Company, Bradley Mining Company, and the Village of Stibnite to intervene. August 6, 1946, the Commission filed Order No. 3077 denying the application for rehearing, and the application for a stay of the cease and desist order.

An appeal has been taken to this court from all of said orders above mentioned, except Order No. 3076.

Appellants set forth seventeen assignments of error, which have been combined into three groups. Under assignments 1 to 7, inclusive, the point is made that the legislature never intended to give the Public Utilities Commission jurisdiction over contract carriers.

The Auto Transportation Act was first enacted in 1925, and has been amended at various sessions of the legislature. Sess.Laws, 1925, chap. 197, p. 365; Sess.Laws, 1927, chap. 237, p. 357; and Sess.Laws, 1929, chap. 267, p. 614. In House Bill 271, as originally introduced it was provided that: "No person * * * shall operate any motor vehicle or motor vehicles for compensation between fixed termini or over a regular route in this state, over any public highway in this state, without having first obtained from the Commission, under the provisions of this Act, a certificate declaring that public convenience and necessity require such operation; * * *" but when finally enacted, Sess.Laws, 1929, chap. 267, Sec. 2 (a), now Section 59-802, I.C.A., it provided: " It shall be unlawful for any motor carrier, as the term is defined in this chapter, to operate any motor vehicle in motor transportation without first having obtained from the commission a permit covering such operation."

It clearly appears from the amendment of the original act that the legislature eliminated therefrom the provision that it was necessary to show convenience and necessity in order to obtain a permit to operate any motor vehicle or motor vehicles for compensation between fixed termini or over a regular route in this state, over any public highway in this state.

In Order No. 3057, dated July 15, 1946, it is stated: "The responsibility of the applicant does not stand out as an issue in this record, nor does his ability to furnish adequate, safe and proper service. The issues herein, therefore, appear to be narrowed down to the question of whether or not good cause has been shown for the granting of this application."

The Commission found that Malone was responsible, and that he had the ability to furnish adequate, safe and proper service that the authority under...