Mc,Kay v. Public Utilities Com'n

• Decision Date: 29 May 1939
• Docket Number: 14320.
• Citation: 104 Colo. 402,91 P.2d 965
• Parties: Mc,KAY v. PUBLIC UTILITIES COMMISSION et al.
• Court: Colorado Supreme Court

91 P.2d 965

104 Colo. 402

Mc,KAY v. PUBLIC UTILITIES COMMISSION et al.

No. 14320.

Supreme Court of Colorado, En Banc.

May 29, 1939

Rehearing Denied June 26, 1939.

Error to District Court, City and County of Denver; Stanley H Johnson, Judge.

Action by Oren L. McKay against the Public Utilities Commission of the State of Colorado and others, to obtain review of and to set aside findings and orders of the named defendant. To review an adverse judgment, plaintiff brings error.

Affirmed.

Marion F. Jones and John P. Beck, both of Denver for plaintiff in error.

Byron G. Rogers, Atty. Gen., and James J. Patterson, Asst. Atty Gen., for defendant in error Public Utilities Commission.

Richard E. Conour and Elizabeth A. Conour, both of Del Norte, and Myron H. Burnett, of Denver, for defendants in error Northeastern Motor Freight Co. and the Motor Truck Common Carriers' Ass'n.

OTTO BOCK, Justice.

This action was instituted in the district court by plaintiff in error McKay, hereinafter mentioned as petitioner, to obtain a review, and ultimately a judgment, setting aside certain findings and orders of the Public Utilities Commission, one of the defendants in error, entered upon a complaint filed by it April 2, 1936, and a similar one presented by the Northeastern Motor Freight Company of date April 9, 1936, whereby petitioner was adjudged to have violated the terms of his permit to operate and certain provisions of the Motor Vehicle Carriers statute as specified. The review was sought under section 52, chapter 137, '35 C.S.A., the procedure being sanctioned by our holding in Greeley Transportation Co. v. People, 79 Colo. 307, 245 P. 720. We believe a somewhat detailed statement of the proceedings necessary to an understanding of the questions involved.

The two complaints were consolidated, and hearings held thereon June 30, 1936, and September 14, 1936, respectively. Thereafter March 1, 1937, the commission made the following findings: (1) That petitioner has accepted and transported freight on joint through rates to Sterling, billed and destined to points on lines of various connecting carriers with whom he interchanged said freight; (2) that he has listed said connecting carriers as his customers; (3) that said listing was and is unlawful and contrary to the commission's present rules and regulations; (4) that the advertising cards distributed by him to his customers were and are in violation of the rules and regulations of the commission; (5) that he has improperly operated as a common carrier in interstate commerce, and as a private carrier in intrastate commerce, over the same route, at the same time, with the same equipment, and under the same trade name; (6) that the private permit theretofore issued to petitioner should be cancelled and revoked, unless and in lieu thereof respondent pay $200 as a penalty, and cease and desist from performing and doing the things of which complaint has been made.

Based upon these findings, the commission entered an order cancelling and revoking respondent's Private Permit No. A-44, provided that in lieu thereof he may pay $200 as a penalty under section 61, chapter 137, '35 C.S.A.; that petitioner cease and desist, (1) from accepting and transporting any freight destined to points not authorized to be served by him under the terms of his permit; (2) from interchanging freight with other carriers by motor vehicle, either common or private; (3) from violating Rule 19 of the rules and regulations of the commission relating to advertising effective September 1, 1936; and (4) from operating as a common carrier in interstate commerce and as a private carrier in intrastate commerce. No issue is made in the record of the validity of the alternative order providing for a penalty in lieu of revocation.

Thereafter petitioner filed an application for rehearing, setting forth numerous grounds comprehended in the following: (1) That the commission, in entering said orders, exceeded its jurisdiction; (2) that the findings of the commission are unlawful for the reason that they have no support in law or the evidence submitted. In denying the petition for rehearing and in construing its order, the commission said: 'The purport of our order is * * * to require him [respondent] to cease and desist from operating as a common carrier in intrastate commerce without first having obtained a certificate of public convenience and necessity * * *.'

Reduced to a minimum, what the commission found was that respondent was operating as a common carrier in intrastate commerce without first having obtained a certificate of public convenience and necessity therefor, and it entered an order cancelling his private permit for having done so and requiring him to cease and desist from so continuing.

Counsel for petitioner as well as counsel for respondents urge us, in view of the confusion, growing pains and chaos of truck transportation in this state, to establish definite principles of conduct governing truck-carrier operations. We have no power to establish such principles. All we can do is to ascertain the legislative intent and interpret the statutes and decide whether, under the facts and circumstances, the commission was authorized to enter the orders of which complaint is made. A review of the legislative enactments governing motor vehicle transportation over the public highways of this state will, in our opinion, be helpful. Prior to the enactment of chapter 134, S.L. '27, page 499, motor vehicle transportation was controlled by the public utilities law, chapter 137, '35 C.S.A. The regulations imposed by that legislation related solely to common carriers. Chapter 134, supra, is a special act to regulate motor vehicle common carriers, and it defines such operations in section 1(d), p. 500, as follows: '(d) The term 'motor vehicle carrier' when used in this act means and includes every corporation, person, firm, association of persons, lessee, trustee, receiver or trustee appointed by any court, owning, controlling, operating or managing any motor vehicle used in serving the public in the business of transporting persons or property for compensation over any public highway between fixed points or over established routes, or otherwise, who indiscriminately accept, discharge and lay down either passengers, freight or express, or who hold themselves out for such purpose by advertising or otherwise.'

This section was subsequently amended by section 1(d), chapter 121, S.L. '31, p. 481, chapter 16, section 300(d), '35 C.S.A. and reads as follows:

'(d) The term 'motor vehicle carrier,' when used in this act [subdivision], means and includes every corporation, person, firm, association of persons, lessee, trustee, receiver or trustee appointed by any court whatsoever, owning, controlling, operating or managing any motor vehicle used in serving the public in the business of the transportation of persons or property for compensation as a common carrier over any public highway between fixed points or over established routes, or otherwise, whether such business or transportation is engaged in or transacted by contract, or otherwise.

'The fact that any such person carries on his said operations:

'(a) In whole or in part between substantially fixed points or over established routes; or

'(b) Under contracts with more than one person or corporation; or

'(c) By making repeated or periodical trips, shall be prima facie evidence that such person is a motor vehicle carrier hereunder.'

This section was in effect during the pendency of the instant litigation. Not until 1931 was there any legislative action to authorize the regulation or private or contract carriers. Chapter 120, S.L. '31, p. 465. The term 'private carrier by motor vehicle' was therein defined (section 1(h) as follows: '(h) The term 'private carrier by motor vehicle' means every corporation or person, lessee, trustee, receiver or trustee appointed by any court whatsoever, other than motor vehicle carriers as defined by Section 1-(d) of Chapter 134 of the Session Laws of Colorado for the year 1927, as amended, owning, operating, controlling or managing any motor vehicle in the business of transporting persons or property for compensation over any public highway of this State between fixed points or over established routes, or otherwise, by contract or otherwise, and shall include all persons or corporations operating their own motor vehicles for the transportation of their own property, goods or merchandise, who charge or collect from the consignee, purchaser or recipient of such property, goods or merchandise, compensation for transporting or delivering the same.'

This section was subsequently amended (S.L. '35, p. 867, section 1(h), chapter 16, section 348(h), '35 C.S.A.), and reads as follows:

'(h) The term 'private carrier by motor vehicle' means every corporation or person, lessee, trustee, receiver or trustee appointed by any court whatsoever, other than motor vehicle carriers as defined by Section 1(d) of Chapter 134 of the Session Laws of Colorado for the year 1927, as amended, owning, controlling, operating or managing any motor vehicle in the business of transporting persons or property of others for compensation or hire over any public highway of this State between fixed points or over established routes, or otherwise, by special contract or otherwise.

'Private carriers by motor vehicle are hereby divided into two classes for the purposes of this Act, which shall be as follows:

'(1) Class A Private Carriers shall embrace all private carriers by motor vehicle operating over substantially regular or established routes or between substantially fixed termini; or to a fixed terminus or termini;

'(2) Class B Private

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