Public Utilities Com'n v. Manley

• Citation: 60 P.2d 913,99 Colo. 153
• Decision Date: 28 July 1936
• Docket Number: 13927.
• Parties: PUBLIC UTILITIES COMMISSION et al. v. MANLEY et al.
• Court: Colorado Supreme Court

60 P.2d 913

99 Colo. 153

PUBLIC UTILITIES COMMISSION et al. v. MANLEY et al.

No. 13927.

Supreme Court of Colorado, En Banc.

July 28, 1936

Rehearing Denied Sept. 21, 1936.

Error to District Court, Fremont County; James L. Cooper, Judge.

Suit by William Manley and others, a copartnership doing business under the name and style of the Manley Coal Company, against the Public Utilities Commission of the State of Colorado and others. To review an adverse judgment, the defendants bring error.

Reversed and remanded, with instructions.

HOLLAND J., dissenting.

Paul P. Prosser, Atty. Gen., and Richard E. Conour Asst. Atty Gen., for plaintiffs in error.

Sidney R. Hahn and Bernard E. Madden, both of Florence (Otto Friedrichs, of Denver, of counsel), for defendants in error.

Marion F. Jones, of Longmont, and Gordon Allott, of Lamar, amici curiae.

YOUNG Justice.

The parties will be designated herein as in the district court. Plaintiffs are the owners and operators of a coal mine in Fremont county. A part of the product of their mine is sold to customers in and about Canon City and delivered by truck. Some of these consume, while others resell, the coal. In making such deliveries they use the public highways of the state, some of which were constructed and are maintained in whole or in part by the United States government, some of which were constructed and are maintained in whole or in part by the state highway department, and some of which were constructed and are maintained by counties through revenues raised by direct taxation. Plaintiffs instituted an action in the district court of Fremont county to enjoin the Public Utilities Commission, the members thereof individually, its secretary and the Attorney General as defendants, from enforcing chapter 167, Sess.Laws 1935 (page 880), on the ground that it is invalid and void for numerous reasons which they set forth, many of which raise constitutional questions.

The district court overruled a general demurrer to the complaint. The defendants elected to stand on their demurrer; the district court entered judgment against them and granted the injunctive relief prayed. To set aside this judgment the defendants bring the matter here on writ of error.

The district court based its final judgment and decree on three grounds, namely: (1) That said act delegates to the Utilities Commission of Colorado certain legislative functions. (2) That it attempts to confer upon said commission certain judicial functions. (3) That it is unjustly and unreasonably discriminatory in that it does not affect alike all commercial carriers by motor vehicle, but exempts from the operation of the act commercial carriers by motor vehicle of farm products and livestock.

The plaintiffs insist that the matter is Before us primarily on the question of whether it was error for the district court to overrule the demurrer, and with this contention we agree. If the district court was in error in overruling the demurrer on the three grounds set out in its decree, the judgment must still stand if it may be upheld on other issues of law raised by the demurrer. Whether other matters sufficient in law to sustain the court's ruling appear requires that we consider all of the issues properly cognizable by the district court and properly presented here for our determination.

Chapter 167, Session Laws of 1935 (page 880), is an act to regulate the use of the public highways of the state and persons using them in transporting property in furtherance of any commercial enterprise. It fixed the compensation to be paid for the use of such highways for such purposes. The questioned portions of the act will be set forth in haec verba or in substance as we pass upon the various reasons alleged by plaintiffs as showing its invalidity.

In passing it is pertinent to observe that the act is but one of three acts designed to regulate the highways of the state and the use thereof. Chapter 134, Session Laws of 1927 (page 499), applies to common carriers and imposes a tax of five mills per ton mile as compensation for their use of the highways in the transportation of freight. Chapter 120, Sess.Laws 1931 (page 465), applies to private contract carriers for hire and fixes five mills per ton mile as the compensation to be paid by them for the use of the highways in carrying on such a business enterprise. This act was made to apply to persons transporting their own property for sale also, where a transportation charge was included in the selling price, but as so applied it was held unconstitutional in People v. Montgomery, 92 Colo. 201, 19 P.2d 205, due to a defect in the title of the act. The act here under consideration was passed, apparently to supplement chapter 120, supra, as applicable to private carriers for hire, which was held constitutional as so applied in Bushnell v. People, 92 Colo. 174, 19 P.2d 197.

The three acts taken together constitute a regulation of common carriers, private carriers for hire, and those who transport their own property in furtherance of any commercial enterprise, over the highways of the state, and severally they fix the compensation per ton mile to be paid by each of such classes of carriers for the use of the highways in transporting freight. The three acts are material to the questions here involved as indicative of the general public policy of the state.

The plaintiffs attack the sufficiency of the title of the act under section 21, article 5 of the State Constitution, the pertinent portion of which is, that 'No bill * * * shall be passed containing more than one subject, which shall be clearly expressed in its title.' The title of the act in question is as follows: 'An act providing for the regulation of the use of public highways and of persons, firms, corporations and associations owning, controlling, operating and managing motor vehicles used in transporting property in the furtherance of any private commercial enterprise, as commercial carriers by motor vehicles, upon the public highways of this state, and prescribing the compensation to be paid for the use of such highways in the furtherance of any private commercial enterprise, providing penalties for violation of this act and repealing all acts and parts of acts in conflict herewith.' This title is quite different from the title held insufficient as to carriers of their own property in chapter 120, supra. That title referred only to 'persons * * * operating or managing motor vehicles used in the business of transporting * * * property for compensation or hire.' Obviously, as we held in People v. Montgomery, supra, such a title is not broad enough to include the class of carriers the act here in question was enacted to regulate. We think the title of the act Before us is sufficient. We have many times passed upon similar objections, but no good purpose could be served by extended citation of authorities and we content ourselves with quoting what we said in Driverless Car Co. v. Armstrong, 91 Colo. 334, 14 P.2d 1098, 1099, which states the rule that controls this case: 'If legislation in the body of a statute is germane to the general subject expressed in the title; if it is relevant and appropriate to such subject, or is a necessary incident to the object of the act, as expressed in the title, it does not violate this provision of the Constitution. One test is 'whether the legislation in the body of a bill is upon matters properly connected with its subject, as expressed in its title, or proper to the more full accomplishment of the object so indicated.' In the title, particularity is neither necessary nor desirable; generality is commendable.'

Plaintiffs contend that the act is one for raising revenue, and is void under section 31, article 5, of the State Constitution because it originated in the Senate. It provides that not to exceed 20 per cent. of the gross revenue shall be used in administration costs and that the remainder shall be divided 50 per cent. to the state highway department and 50 per cent. to the counties to be apportioned according to the mileage of state highways as laid out by the highway department. In Ard v. People, 66 Colo. 480, 182 P. 892, 893, a criminal case, in which the defendant was convicted of driving an automobile without a license, the same objection was made. In that case we said: 'The third and last objection urged by the plaintiff in error is that--'The Motor Vehicle Act is an attempt under the police powers of the state to pass a revenue measure.' This objection cannot be sustained. A revenue measure is one which has for its object the levying of taxes in the strict sense of the words. If the principal object is another purpose, the incidental production of revenue growing out of the enforcement of the act will not make it one for raising revenue. Colorado Nat. Life Assurance Co. v. Clayton, 54 Colo. 256, 130 P. 330; C., B. & Q. R. Co. v. School District, 63 Colo. 159, 165 P. 260. The purpose of the registration fees required by the Motor Vehicle Act is not the levying of taxes or the collection of revenue. Such fees are in the nature of a license or toll for the use of the public highways. Ex parte Hoffert [34 S.D. 271, 148 N.W. 20, 52 L.R.A. (N.S.) 949], supra. In Berry on Automobiles, § 91, citing Kane v. Titus [81 N.J.Law, 594, 80 A. 453, L.R.A.1917B, 553, Ann.Cas.1912D, 237], supra, it is said that the license fee 'is a charge in the nature of compensation for damages done to the roads of the state by driving such machines over them.' In accord with the view above taken is the case of Atkins v. State Highway Department [(Tex.Civ.App.) 201 S.W. 226], supra, where it is held that the fact that the proceeds of automobile licenses are used in the construction of roads does not render...