Mississippi-Gulfport Compress & Warehouses, Inc. v. Public Service Commission

• Decision Date: 10 June 1940
• Docket Number: 34206
• Citation: 189 Miss. 166,196 So. 793
• Parties: MISSISSIPPI-GULFPORT COMPRESS & WAREHOUSES, INC. v. PUBLIC SERVICE COMMISSION
• Court: Mississippi Supreme Court

196 So. 793

189 Miss. 166

MISSISSIPPI-GULFPORT COMPRESS & WAREHOUSES, INC. v. PUBLIC SERVICE COMMISSION

No. 34206

Supreme Court of Mississippi, Division B

June 10, 1940

APPEAL from the circuit court of Hinds county, HON. J. P. ALEXANDER Judge.

Proceeding in the matter of the application by Mississippi-Gulfport Compress & Warehouses, Inc., to the Public Service Commission of Mississippi, for certificate of convenience and necessity to operate motor trucks, wherein the petition was dismissed and the circuit judge granted a supersedeas. From a judgment affirming the commission's order, the applicant appeals. Affirmed.

Affirmed.

Eaton &amp Eaton, of Gulfport, for appellant.

The Commission erred in dismissing the application of the appellant upon the alleged ground that the charter of incorporation of appellant did not authorize the operation sought by appellant in its application. At the outset, it is at once obvious that the ruling of the attorney general upon which the Commission based its ruling does not hold that the appellant had no authority to operate as a restricted common carrier of cotton only, but holds that its charter does not authorize the applicant to become a common carrier under the Motor Carrier Regulatory Act. The difference between a restricted common carrier of a certain commodity and a common carrier is clearly defined by the Act itself. The functions and duties of the two types of carriers are entirely different, so that the opinion of the attorney general upon which the Commission based its ruling is no authority for holding that the appellant had no authority under its charter to operate.

14A C J. 252.

The appellant operates a cotton compress and warehouses. It is clearly within its powers, as well as the duty of the corporation to its stockholders, to obtain as much cotton for the warehouses as it is possible to get. The obtaining of such cotton is just as much a part of its business as the actual storing and compressing of it. If no cotton can be obtained, then the purposes of the corporation fail, and any lawful means employed by the corporation to obtain cotton are within the implied powers of the company to operate a cotton warehouse and compress business.

14A C J. 252-257; Keating v. Am. Brewing Corp., 62 A.D. 501, 503, 71 N.Y.S. 95; Sales-Davis Co. v. Henderson-Boyd Lbr. Co., 193 Ala. 166, 170, 69 So. 527; Calloway, etc., Mining Co. v. Clark, 32 Mo. 305.

It is obvious that upon the theory of implied powers there is no doubt as to the authority of the appellant in this case to operate as a restricted carrier of the commodity of cotton only. Such operation has a direct relation to the business of conducting a cotton compress and warehouse, and without the transportation operation the compress and warehouse business would inevitably suffer.

The Commission erred in denying to appellant an opportunity to present evidence of the nature of its business, such denial amounting to a denial of due process of law contrary to Section 14 of the Constitution of the State of Mississippi and contrary to the 14th Amendment to the constitution of the United States. The Commission erred because the nature of appellant's business would be a decisive factor in determining whether or not its operation as a restricted common carrier of cotton only was beyond the scope of its charter.

The Commission erred in using a document not in the record before it and never introduced in evidence at the time of its ruling, to-wit: appellant's charter of incorporation, as the sole ground of dismissing appellant's application.

The Commission erred in allowing a protestant to obtain an opinion of the attorney general with reference to appellant's charter without giving appellant an opportunity to be heard before such opinion was given.

The Commission erred in denying appellant the opportunity to present evidence before the Commission tending to show its bona fide operation as a restricted common carrier of cotton only, as alleged in its application, such denial amounting to a denial of due process of law, contrary to Section 14 of the Constitution of the State of Mississippi and contrary to the 14th Amendment to the Constitution of the United States.

U. S. v. L. & N. R. R. Co., 272 U.S. 88, 57 L.Ed. 431; State of Washington ex rel. Oregon R. R. & Navigation Co. v. Fairchild, 56 L.Ed. 510, 868, 224 U.S. 510; Morgan v. U.S. 304 U.S. 1, 82 L.Ed. 1129; Sec. 8 (b), Motor Carrier Regulatory Act, 1938.

The Commission erred in deciding that the charter of incorporation of the appellant does not authorize its operation as a restricted common carrier of cotton only.

The Commission violated the Motor Carrier Regulatory Act, 1938, under which the Commission was created.

Flowers, Brown & Hester, J. N. Ogden, May, & Byrd, and Stevens & Stevens, all of Jackson, for appellee.

Under the Mississippi Motor Carrier Regulatory Act, persons engaged in the business of a common carrier over irregular routes or hauling a restricted class of commodities are classified and defined as "restricted common carriers." They are common carriers because doing business as carriers for hire for the public in general, but are clasified as being "restricted common carriers" because not engaged in the business of hauling commodities generally or not engaged in regular route operations. The most common example for such carriers are those engaged in the business of moving household goods, who hold themselves out to serve the public in general, but who only haul household goods as household movers and who do not operate over regular routes, but instead will serve any point within the territory in which they are engaged in business. Appellant is therefore in error in saying that it does not propose to do business as a common carrier since the business is that of a common carrier, but restricted by the limitation of the commodity hauled, to-wit, cotton only, and distinguished from ordinary common carrier operations because not conducted over a regular route or between fixed termini. The business of operating mills, gins, compresses and warehouses, compress systems, patents, warehousing in cold storage, wharfage, piers and docks, lending money on property stored or otherwise, to improve property on lands and personal effects, and to adopt copyrights, trade marks, names, etc., and all incidental powers thereto, does not, we submit, authorize the appellant to engage in any public utility business except that of warehouse or wharfinger.

Calloway Mining Company v. Clark, 32 Mo. 305, fully illustrates the proposition that what was meant by the provision in appellant's charter, upon which it relies, is that the appellant was granted the power to own conveyances necessary to haul such commodities as it might store in its warehouse. The right to own or invest money of the stockholders in certain property is vastly different from the right to carry on a particular kind of business through the use of certain property.

People ex rel. Healy v. I. C. R. R. Co., 233 Ill. 378, 84 N.E. 368, 16 L. R. A. (N. S.) 604; Haugh & Keenan Storage & Transfer Co. v. Pa. Public Utilities Com., 2 A.2d 548.

In instances such as this where this court has had no occasion to pass on the specific question here presented, it is not often that the court is so fortunate as to have the benefit of the opinion from another jurisdiction on the precise question. Particularly is that true since the business of carrying for the public by motor vehicle is what might be called a new business in this country. However, the Keenan Storage & Transfer Company case, supra, is as nearly like the case at bar as could be possible or probable under the circumstances.

We feel that this court will encounter no particular difficulty in construing this charter to mean that the appellant is authorized by its terms to engage in the business of operating a warehouse and compressing cotton and that it is not authorized to operate the business of a public carrier for hire.

6 Fletcher's Cyclopedia on Corporations, Sec. 2488.

About the only recognized exception to the general rule that a corporation may not embark on a business different from that for which it was incorporated is where the new business or different business is merely casual, temporary, or incidental, or where it is to secure or collect a debt due the corporation.

6 Fletcher's Cyclopedia on Corporations, Sec. 2490(3).

However, in this case, there is no pretense on the part of appellant that this proposed public carrier business is either casual, temporary, or incidental, or that it is for the purpose of securing or collecting a debt.

A separate business activity, such as operating motor trucks as a public carrier, is such an entirely new, different and separate line of business that it could not, under any theory, be regarded as incidental to the business of compressing and warehousing cotton. The fact that the attorney-general based his opinion on the language of the certificate of incorporation itself, rather than on a statement of facts regarding the business actually being engaged in by appellant, is immaterial because appellant under its charter could not engage in the business of a public carrier under the guise of a power incident to its main objectives. We respectfully submit that the Commission acted within its proper province in referring the matter to the attorney general for an opinion, and that the attorney general was entirely justified in examining the charter at the request of the Public Service Commission, and in rendering the opinion which was delivered.

The Public Service Commission of Mississippi, as a quasi-judicial body, exercising judicial functions in this instance, was authorized to take judicial notice of the...