People v. Montgomery

• Decision Date: 30 January 1933
• Docket Number: 13178.
• Citation: 19 P.2d 205,92 Colo. 201
• Parties: PEOPLE v. MONTGOMERY.
• Court: Colorado Supreme Court

19 P.2d 205

92 Colo. 201

PEOPLE v. MONTGOMERY.

No. 13178.

Supreme Court of Colorado, En Banc.

January 30, 1933

Error to District Court, Boulder County; Neil F. Graham, Judge.

Action by the People against W. L. Montgomery. Judgment of dismissal was entered, and plaintiff brings error.

Affirmed.

Clarence L. Ireland, former Atty. Gen., Colin A Smith, Asst. Atty. Gen., Paul P. Prosser, Atty. Gen., and Richard E. Conour, Asst. Atty. Gen., for the People.

Horace N. Hawkins and Page M. Brereton, both of Denver, for defendant in error.

MOORE Justice.

This action was brought by the Attorney General at the request of the Public Utilities Commission, to enjoin W. L. Montgomery from hauling for sale at a profit his own coal in his own motortruck over the public highways of the state from the place of purchase to the place of delivery upon sale unless he secure a permit to operate as a private carrier and otherwise comply with chapter 120, p. 465, Session Laws of 1931.

This is admittedly a test case brought for the purpose of determining whether one so engaged is subject to the provisions of the Private Motor Vehicle Carrier Act, chapter 120, p. 465 Session Laws of 1931, and, if so, whether certain provisions of the act are unconstitutional. This case should be considered in connection with Bushnell v. People (Colo.) 19 P.2d 197, decided January 30 1933, which also involves the constitutionality of this statute.

A stipulation supplemented by other evidence was introduced. This discloses that Montgomery is sales manager for the Louisville-Lafayette Coal Company and at the time the suit was brought was engaged personally in the coal business, buying coal from the so-called Hi-Way Mine of the Louisville-Lafayette Coal Company and other mines and selling the coal at retail; that in the course of his business he operated a Ford truck which hauled coal on the public highways from the mine to various destinations, including Denver, and other places within a radius of twenty-five to fifty miles of the mine; that he paid $4.25 a ton for lump coal at the mine; that he sells the coal at retail in Denver for approximately $6.25 per ton, and that he had sold coal at retail in Greeley for $7.50 per ton and that he sells coal at Golden for $6.25 per ton, and at Boulder for $6; that his profit is $2 a ton on lump hauled to Denver and, of course, proportionate profit on lump hauled elsewhere.

It does not appear when and where the sales of the coal so transported were made; nor does it appear that Montgomery charged or received either directly or indirectly any identifiable or specific amount to cover the cost of transportation; nor does it appear that the purchasers either expressly or impliedly agreed to pay any amount for the transportation thereof.

The lower court found the equities in favor of Montgomery, and entered judgment of dismissal, to review which this writ is prosecuted.

Our attention is especially directed to the claimed unconstitutionality of that portion of subdivision (h) of section 1 which provides: '* * * 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.'

In order to question the constitutionality of this act, one must be affected by its provisions. In view of the widespread gravity and importance of the questions here presented and the further fact that the Legislature now in session may be desirous of enacting other legislation in connection with the use of the public highways of the state, and although there is a grave question as to whether, under the stipulation and evidence, Montgomery comes within the act, we shall assume that he is in a position to question the constitutionality thereof.

It is urged that that portion of subsection (h) of section 1, chapter 120, Session Laws of 1931, above quoted, is unconstitutional because the title of the act is insufficient to cover the character of transportation therein set forth.

The act is entitled: 'An Act providing for the regulation of the use of public highways and of persons, firms, corporations and associations owning, controlling, operating or managing motor vehicles used in the business of transporting persons or property for compensation or hire, as private carriers by motor vehicle, upon the public highways of this state, and prescribing the compensation to be paid for the use of such highways in carrying on such business, providing penalties for the violation of this act and repealing all acts and parts of acts in conflict therewith.'

Section 1(g) provides: 'The term 'compensation' as used in this Act shall mean money or property of value charged and/or received, or to be charged and/or received, whether directly or indirectly, as compensation for the service rendered of transporting over any of the public highways of Colorado in motor vehicles by a private carrier by motor vehicle, as the term is defined in this Act, any person, property, article or thing.' Section 1(h) provides: '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.'

Section 3 provides: 'It shall be unlawful for any private carrier by motor vehicle, as defined in Section 1 of this Act, to engage in or transact the business of transporting passengers, freight, merchandise or other property over the public highways of the State of Colorado, without first having obtained a permit therefor from the Public Utilities Commission of the State of Colorado. * * *'

It would seem to us unreasonable to say that any one, carefully considering this title, would be put on notice that one who hauls over the public...