Public Utilities Com'n v. Weicker Transp. Co., 14278.

• Decision Date: 21 March 1938
• Docket Number: 14278.
• Citation: 78 P.2d 633,102 Colo. 211
• Parties: PUBLIC UTILITIES COMMISSION et al. v. WEICKER TRANSP. CO. et al.
• Court: Colorado Supreme Court

78 P.2d 633

102 Colo. 211

PUBLIC UTILITIES COMMISSION et al. v. WEICKER TRANSP. CO. et al.

No. 14278.

Supreme Court of Colorado, En Banc.

March 21, 1938

Rehearing Denied April 18, 1938.

Error to District Court, City and County of Denver; Otto Bock Judge.

Action in certiorari by the Weicker Transportation Company and others against the Public Utilities Commission of the state of Colorado and another involving authority of the Public Service Commission on its own motion to enlarge or clarify a permit to transport freight for hire issued to a private carrier. To review an adverse judgment, the Public Utilities Commission and another bring error.

Judgment reversed and writ discharged.

BURKE C.J., dissenting.

Byron G. Rogers, Atty. Gen., James J. Patterson Asst. Atty. Gen., and Worth Allen, of Denver, for plaintiffs in error.

Richard E. Conour and Elizabeth A. Conour, both of Denver, for defendants in error.

Marion F. Jones, of Denver, amicus curiae.

BAKKE Justice.

Action in certiorari involving authority of the Public Utilities Commission, on its own motion to enlarge or clarify a permit to transport freight for hire issued to a private carrier, so as to include intermediate points on his route, when such intermediate points were not mentioned in his application or in his permit. The trial court held that the commission, in assuming to exercise such authority, abused its discretion, and exceeded its jurisdiction. The commission and the carrier Goldstein, as plaintiffs in error, seek reversal of that judgment. Defendant in error Weicker Transportation Company, a corporation, is a competing carrier, and the attorney for the Colorado Trucking Association appears as a friend of the court.

On March 3, 1933, Goldstein applied to the commission for an A permit, asking the right to transport freight by truck in both interstate and intrastate commerce, the pertinent parts of the application reading as follows:

'The proposed operation is to be over substantially regular or established routes, or between substantially fixed termini, or to a fixed terminus or termini. Between Denver and Colorado-Wyoming line via U.S. Highway 285 and 85. Between Denver and Pueblo via U.S. Highway 85, both intrastate and interstate.'

In response to this application, the commission on March 7, 1933, issued Permit No. A-430 to Goldstein, which reads in part as follows:

'In compliance with the provisions of H. B. 173 and with due consideration of the matter set forth in Application A-430, the Commission does hereby grant authority to Bennie Goldstein, whose address is 2243 Lafayette Street, Denver, Colorado, to operate from February 20, 1933, as a private carrier by motor vehicle as it is defined in Section 1 H. B. 173; and to use the equipment set forth in said application. The permittee shall legibly mark each vehicle used in said operation as follows '1933, Colo. Permit A-430."

At the time private carriers were divided into two classes by section 1, c. 120, p. 465, Sess. Laws 1931, section 348, c. 16, '35 C.S.A., 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 carriers shall embrace all private carriers by motor vehicle who do not operate over substantially regular or established routes or between substantially fixed termini.'

Prior to March 1, 1933, Goldstein had been operating under a class B permit, but had been advised by the chief inspector of the commission that he could carry on his same operations under a class A permit, which would cost him less money, and that was his reason for changing. It is not disputed that he had been serving a number of intermediate points under his class B permit, and that the commission knew of that fact.

In 1935, the General Assembly amended the Motor Carrier Act, in part, so as to provide that no private permit should be issued, extended, or enlarged, 'if the commission shall be of the opinion that the proposed operation of any such private carrier will impair the efficient public service of any authorized motor vehicle common carrier or carriers then adequately serving the same territory over the same general highway route or routes.' Section 2, c. 166, p. 867, Sess.Laws 1935 (approved April 3, 1935), '35 C.S.A. c. 16, § 350.

Subsequently, the commission, presumably in pursuance of the above amended statute on January 15, 1937, sent out a mimeographed letter entitled 'Notice to All 'For Hire' Carriers,' requiring all motor carriers 'holding either certificates of public convenience and necessity or private permits' who were serving intermediate points, but whose certificates or permits 'do not mention intermediate points,' and who are performing service which is not in terms authorized by their respective permits or certificates, 'to file formal application with the commission on or Before February 15, 1937, for clarification of their respective authorities and approval of such service or operation.' (While this letter was not in the record, it was referred to in the briefs and oral argument.)

In response to the above, Goldstein alleged in his application of February 3, 1937, as follows:

'That at the time applicant filed said application [for his permit] he desired and intended to procure, and the commission intended to grant, a permit which would authorize the transportation in intrastate and interstate commerce of freight from and to all points between Pueblo and the Colorado-Wyoming State line which were on the routes named.'

On March 8, 1937, a hearing was had on this application, at which the defendants in error and several other interested parties were present. At this hearing Goldstein related in detail what his operations had been since receiving his class B permit, and also since receiving his class A permit showing that he had almost from the beginning served a number of intermediate points between Denver and the Colorado-Wyoming state line, and intermediate points between Denver and Pueblo; that he had, over a...