Public Utilities Commission of Utah v. Garviloch

• Decision Date: 29 April 1919
• Docket Number: 3350
• Court: Utah Supreme Court
• Parties: PUBLIC UTILITIES COMMISSION OF UTAH v. GARVILOCH

181 P. 272

54 Utah 406

PUBLIC UTILITIES COMMISSION OF UTAH v. GARVILOCH

No. 3350

Supreme Court of Utah

April 29, 1919

Appeal from District Court, Third District, Salt Lake County; H. M Stephens, Judge.

Action by the Public Utilities Commission of Utah against Mike Garviloch. From a judgment for defendant, plaintiff appeals.

AFFIRMED.

Dan B Shields, Atty. Gen., and O. C. Dalby, Jas. H. Wolfe, and H Van Dam, Jr., Asst. Attys. Gen., for appellant.

Willard Hanson and B. L. Liberman, both of Salt Lake City, for respondents.

FRICK, J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

FRICK, J.

The Public Utilities Commission of Utah, hereinafter called commission, commenced this action in the district court of Salt Lake county to enjoin the defendant from operating a certain "automobile stage line." The commission, in its complaint, in substance alleged that on April 2, 1918, one Eugene Chandler made application to the commission for a "certificate of convenience and necessity," as required by the Utilities Act of this state, to operate "a stage line between Bingham Canyon and Highland Boy mine, and between Bingham Canyon and Copperfield in Salt Lake county"; that thereafter a public hearing was duly had on said application, and that said commission duly granted the said Chandler a certificate of convenience and necessity to "operate an automobile stage line for the transportation of passengers" between the places before stated, and that no other person or persons have been granted a certificate of convenience and necessity to operate a stage line or to carry passengers between said places; that "this defendant, Mike Garviloch, disregarding the order so made by the Utilities Commission, has undertaken to operate and is now engaged in the operation of an automobile stage line and to carry passengers for hire over said routes as established by the said order of the Utilities Commission, to wit, between Bingham Canyon and Highland Boy mine and between Bingham Canyon and Copperfield, without having received from the said commission a certificate of convenience and necessity, or without authorization from such commission so to do, and in violation of the terms of chapter 47 Laws Utah 1917, commonly known as the Utilities Act;" that defendant, after being repeatedly requested to refrain from operating said stage line, refuses to do so, and continues to operate the same; that the commission has no speedy or adequate remedy at law, and therefore prays that the defendant be enjoined from operating said stage line, etc.

The defendant appeared and filed a general demurrer to the complaint. The demurrer was overruled, and the defendant filed his answer to the complaint, in which he admitted the capacity of the commission, etc., and in effect denied all other allegations of the complaint. As an affirmative defense he averred:

"And further answering said complaint as a defense thereto, this defendant says that he is the owner of a certain automobile, which car has been duly licensed by the state of Utah as a commercial car; that the town of Bingham Canyan is a duly incorporated municipality of the state of Utah, and on the twelfth day of July, A. D. 1918, said town of Bingham Canyon, through its proper officers, duly issued to this defendant a certain license, which license was then and there required by said town of Bingham Canyon for all persons operating an automobile for hire in and around said town, and the said license was duly issued to this defendant by virtue of the ordinance aforesaid, and duly authorized this defendant to operate an automobile for hire from the said first day of July, A. D. 1918, to the thirty-first day of December, A. D. 1918; and that at the expiration of said license there was duly issued to this defendant another license from the first day of January, A. D. 1919, to the thirty-first day of March, A. D. 1919, authorizing and permitting this defendant to operate a certain automobile for hire;" that he has operated and continues to operate said automobile for hire by virtue of the licenses aforesaid; "that in and around said town of Bingham Canyon are numerous mines and also a number of towns, and that occasionally he has been employed for hire by divers and sundry persons to make trips to cities and towns, including trips to Salt Lake City, Garfield, Lark, Midvale, Riverton, Revere Switch, Phoenix, Highland Boy mine, Frisco mine, Copperfield, United States mine, the Boston Consolidated mine, and various and sundry trips around the town of Bingham Canyon and to other places as might be desired by persons desiring to employ defendant to carry them as passengers in said automobile aforesaid;" that he has made no trips between the points mentioned in the complaint "upon any schedule, or attempted to run between said points, except an occasional run not in competition with any person or corporation operating between said points, * * * but has made a few occasional trips between said points when hired to do so by persons who requested the services of this defendant."

A hearing before the district court upon an agreed statement of facts resulted in a judgment dismissing the action, from which the commission appeals and insists that the district court erred in refusing to enjoin defendant and in dismissing the action.

The defendant contended in the district court, and now contends, that the provisions of the Utilities Act do not cover the acts complained of, and do not affect him in the conduct of the business which he is carrying on as described in his answer and in the stipulation of facts upon which the judgment is based.

The facts stipulated are very voluminous, and, in view of the issues presented by the pleadings, they are, in many respects, redundant and wholly immaterial. After finding that the commission had duly issued to Eugene Chandler a certificate of convenience and necessity to operate an automobile stage line over the route in question and that he is operating the same in accordance with and pursuant to the direction of the commission, the only material facts under the issues are contained in six out of the thirty-four paragraphs contained in the stipulation. While the facts stated in the six paragraphs, in our judgment, could still be further condensed, yet, in view of the contentions of the parties, we have deemed it but fair to state the facts stipulated in the language of the parties. They are as follows:

"(22) That he [defendant] has since the first day of October aforesaid, and up and until he was restrained by order of this court, to wit, the eleventh day of January, A. D. 1919, carried passengers as follows: That he has carried passengers for hire in said automobile from Phoenix and also from Highland Boy mine over said highways to the said Denver and Rio Grande Depot in Bingham; that he has likewise carried passengers in said automobile from the said depot to different points in the said town of Bingham, and likewise to the said town of Copperfield and to the said town of Phoenix and to the said Highland Boy mine.

"(23) That he has also carried passengers for hire in said automobile during the said time hereinbefore referred to, over the said highways from the said towns of Phoenix, Bingham, Copperfield, and from the said Highland Boy mine to Salt Lake City, Midvale, Murray, Garfield, and Lark, and to such other places as he might be hired to carry passengers by those wishing to be carried by the defendant, and as he, defendant, might elect to accept said persons as passengers; and that he has likewise carried passengers to and from various points in and around Bingham, such as the United States mine, which is on said highway in the main canyon, and is beyond the town of Copperfield; and to and from the Boston Consolidated mine and other places in said Carr Fork canyon which are beyond said Highland Boy mine.

(24) That he has at times during the period set forth herein, to wit, from October A. D. 1918, until January 11, 1919, by permission of the officers of Bingham, and by virtue of said license issued by said town, maintained a place in Bingham near where said Carr Fork branches off from the said main canyon aforesaid, and near the place where the said Eugene Chandler has his stand or place where he maintains his automobiles as aforesaid, and at the said point this defendant during said time received persons whom he carried for hire in said automobile over said highway to the town of Phoenix and to said Highland Boy mine, and also at said place in Bingham he has received persons that he has carried for hire in said automobile over said highway to the town of Copperfield; and that he has likewise during the said period received persons as passengers in the said town of Phoenix, and at Highland Boy mine and in the said town of Copperfield, which he has carried as passengers for hire in said automobile over said highway aforesaid, and discharged the said persons as such passengers at the place in Bingham where he maintains said stand as aforesaid.

"(25) That he has, during said period, and up to the time when he was restrained by order of said court, made from 5 to 15 trips per week between the said place or stand in Bingham where he maintained his car as aforesaid and the said town of Copperfield, Phoenix, and the said Highland Boy mine aforesaid.

"(26) That all of said persons so carried, as set forth in paragraphs numbered twenty-four and twenty-five, were carried at the request of the passengers, and upon no regular schedule or schedules, nor upon any regular rate of fare that is to say, that whenever persons, desiring to become passengers between said points as aforesaid, requested this defendant to transport them in said automobile...