Portland Van & Storage Co. v. Hoss

• Decision Date: 08 March 1932
• Parties: PORTLAND VAN & STORAGE CO. et al. v. HOSS, Secretary of State, et al.
• Court: Oregon Supreme Court

9 P.2d 122

139 Or. 434

PORTLAND VAN & STORAGE CO. et al. v. HOSS, Secretary of State, et al.

Supreme Court of Oregon

March 8, 1932

Department 1.

Appeal from Circuit Court, Marion County; Gale S. Hill, Judge.

Suit by the Portland Van & Storage Company and others against Hal E Hoss, Secretary of State, and John H. Carson, District Attorney. From a decree dismissing the complaint seeking an injunction, plaintiffs appeal.

Affirmed.

Robert F. Maguire, of Portland, for appellants.

W. S Levens, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., and Miles H. McKey, Asst. Atty. Gen., on the brief) for respondents.

ROSSMAN J.

The purpose of this suit is to restrain the defendants from applying to the plaintiffs 1929 Session Laws, chapter 394 page 503 (sections 55-1301-55-1340, Oregon Code 1930), on the ground principally that when the provisions of that act are applied to the plaintiffs they are deprived of rights protected by the federal and state Constitutions.

The plaintiffs, fifty in number, describe themselves thus: "Each of the plaintiffs is the owner and operator of various and sundry motor trucks, trailers and semi-trailers, each of which vehicles is equipped with pneumatic tires. *** Plaintiffs from time to time in the regular course of their business, carry by means of said motor vehicles, over the roads and highways of the State of Oregon and more than three miles beyond the boundaries of incorporated cities and towns in which such carriage originates, property for particular persons, firms and corporations, under special and individual contracts, under and by the terms of which they receive compensation for such services. None of these plaintiffs, however, operates said motor vehicles as common carriers of either persons or property. *** The plaintiff Portland Van & Storage Co., in the general course of its business, enters into individual contracts with divers persons, firms and corporations to enter into and upon their premises and to gather together and pack personal property of various kinds, such as household goods and office furniture, furnishings, files and the like, and to load the same into its motor vehicles or moving vans and to carry such personal property over the roads, streets and highways of the State of Oregon. For such service the Portland Van & Storage Co. receives compensation in a lump sum. The plaintiff Morrison Trucking Co., from time to time moves logs and various products by means of its motor vehicles over the roads and highways of the state, and this work and service is done under special and individual agreements and contracts wherein the said plaintiff enters upon the lands of others, falls, bucks and logs, standing and down timber thereon and transports the logs and forest products from said lands over the roads and highways of the state to the logging streams, rivers, railroads and mills wherein further carriage or transportation is undertaken by others. The said plaintiff also, from time to time, in the regular course of its business, enters upon the performance of contracts with the State Highway Commission of the State of Oregon and with various counties and municipal corporations of the state, for the construction, maintenance, or repairs of roads, highways and streets, wherein and whereby it constructs, maintains and repairs such roads, streets, or highways, furnishing material and labor for such work, and hauling road materials to the place of work, Under such contracts the said plaintiff receives compensation. *** The various other plaintiffs are engaged in classes of work of a kind and character similar to that of the Portland Van & Storage Company and the Morrison Trucking Co., heretofore described, and in addition thereto move and carry over the highways of the state, property of others with whom they have entered into special and individual contracts and agreements for such carriage, and for which service they receive compensation. None of these plaintiffs is a common carrier of persons or property, and none of these plaintiffs owns, controls, operates or manages any motor trucks or vehicles used in the business of transporting persons or property or either, for money or property of value, of or for the general public; but each of these plaintiffs does own, control and operate the motor vehicles heretofore mentioned and does move and carry property by means of said motor vehicles over the roads and highways of this state for a distance more than three miles beyond the boundaries and limits of the incorporated city or town in which such movement or carriage originates, and such movement or carriage is done under special or individual contracts and agreements with other individuals, firms and corporations, and not for the general public, and for such services these plaintiffs do each receive money and/or property of value."

Continuing, the complaint alleges: "That there are large numbers of persons, firms, and corporations residents of and doing business in the State of Oregon, operating large numbers of motor vehicles of the same kind, class, condition, and equipment, and of the same respective weights as those operated by these plaintiffs, and engaged in the moving and the carriage of property over the roads, streets, and highways of the State of Oregon, and traveling at the same and greater rates of speed, and being operated the same and a greater number of miles per year upon and over the streets, roads and highways of the State of Oregon, and causing the same and greater damage and wear thereto and thereof, and requiring the same or greater regulation and supervision which, because the owners thereof do not make or receive specific charges or compensation for such moving or carriage, or because they are engaged in the moving and carriage of their own goods and merchandise, or in the moving, carriage, and delivering of goods, wares and merchandise and other property sold to their customers, are not called upon by the said defendant Hal E. Hoss to pay said additional annual license tax fees, and who are thereby granted privileges and immunities from said tax, and the privilege of the use of the roads and highways upon other and different terms than these plaintiffs, who are citizens, residents, and inhabitants of the State of Oregon."

1929 Session Laws, chapter 394, page 503, subjects to the provisions and requirements of that act those carriers by motor vehicles which are expressly defined by the act itself. Of the several classifications of the act, the plaintiffs have called to our attention the two following, both being codified in section 55-1301, Oregon Code 1930:

" Contract Haulers. The term 'contract haulers,' when used in this act, means any person, persons or corporation engaged in the transportation for compensation or hire of persons and/or property for a particular person, persons or corporation to or from a particular place or places under a special or individual agreement or agreements and not operating as a common carrier as the term is defined in this act, and not operating exclusively within the corporate limits of an incorporated city or town, or exclusively within three miles of the boundaries of such city or town.

" Commercial Carrier. The term 'commercial carrier,' when used in this act, means any person, persons or corporation engaged in the transportation or delivery of goods, wares, merchandise, materials and articles of commerce to wholesale or retail merchants or dealers not exclusively within the boundaries of incorporated cities or towns of the state of Oregon, or exclusively within three miles of the boundaries of such city or town; provided, that the term 'commercial carrier' shall not be deemed to include the delivery to market of the products of husbandry by the grower or owner thereof, or his employee, nor the transportation of freight or passengers by motor vehicles in rural communities not done on a commercial basis and not done for the general public, nor commercial salesmen, to wit: Persons actually engaged as traveling or city salesmen, buyers, sellers, credit men and wholesale businesses of a legitimate nature, or manufacturers selling to dealers to be sold again, or traveling adjudicators or traveling auditors for wholesale and manufacturing houses, none of whom are (is) regularly engaged in the delivery of goods."

The other carriers subject to the act are "motor carriers" which, as defined by the act, include all operators engaged "in the business of motor transportation of and for the general public and not operating exclusively within the limits of an incorporated city."

Section 5 of the act (codified as section 55-1305, Oregon Code 1930) renders it unlawful for any motor carrier, contract hauler, or commercial carrier to operate vehicles in motor transportation without obtaining from the Secretary of State a license. Section 15 of the act (being section 55-1315, Oregon Code 1930) provides: "Every motor carrier, contract hauler and commercial carrier subject to this act shall pay to the state of Oregon an annual charge for the maintenance, repair and reconstruction of public highways in this state and for the purpose of defraying the expenses of administration of this act and the expenses of regulation of the business of motor transportation in this state and as compensation for the use of said highways." The fee charged is dependent upon the amount of the license tax fee exacted upon the registration of the carrier's vehicles.

To the complaint which alleged the foregoing facts, and which also pointed out the provisions of the federal and the state Constitutions which the plaintiffs claim are infringed by the above-mentioned statute, the circuit court sustained the defendants' demurrer. From the resulting...