Purple Truck Garage Co. v. Campbell
| Decision Date | 19 October 1926 |
| Citation | 250 P. 213,119 Or. 489 |
| Parties | PURPLE TRUCK GARAGE CO. ET AL. v. CAMPBELL ET AL., PUBLIC SERVICE COMMISSION. |
| Court | Oregon Supreme Court |
In Bank.
Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.
Suit by the Purple Truck Garage Company and others against Thomas K Campbell and others, as the State Public Service Commission for an injunction. From a decree for plaintiff, defendants appeal. Affirmed.
Wm. P. Ellis and J. M. Devers, both of Salem (I. H Van Winkle, Atty. Gen., on the brief), for appellants.
Allen H. McCurtain, of Portland (Geo. W. Gearhart, of Portland, on the brief), for respondents.
The three defendants compose the Public Service Commission of Oregon. The numerous plaintiffs are properly classified into three divisions. Seventeen of them, according to the statement in the brief of the defendants, are engaged in transporting merchandise and various kinds of property for others over the public highways of the state, for compensation, and it is claimed by the plaintiffs that this is performed under private contract. Another type of service involved in this suit is that furnished by the Purple Truck Garage Company. It is principally engaged in highway construction wherein, in addition to the transportation of material for that purpose, it processes the same with graders and other appliances, resulting in a finished road surface. An example of the third class is that of James A. C. Tait & Company. It sells building material of various kinds, as an ordinary merchant, and delivers it at its place of business, or, if the customer desires, it will, for an additional charge depending upon the length of the haul, deliver it at the place where it is to be used. All the plaintiffs use the public highways of the state in the transactions outlined above.
The complaint asserts, in substance, that the defendants, in their capacity as the Public Service Commission, are seeking to enforce against the plaintiffs the provisions of chapter 10, General Laws of Oregon, passed at the special session of 1921, being an act entitled:
"An act providing for the supervision and regulation of the transportation of persons and property for compensation over any public highway by motor vehicles, motor trucks, motor busses, bus trailers, semitrailers and other trailers used in connection therewith, and by other motor vehicles: defining what constitutes transportation for compensation; defining transportation companies, and providing for the supervision and regulation thereof by the Public Service Commission of Oregon: providing for the enforcement of the provisions of this act and for the punishment of violations thereof, and declaring an emergency."
It is said, in substance, that the defendants have caused the arrest and prosecution of the drivers engaged by the plaintiffs in the operation of their trucks and will continue so to do unless enjoined. With appropriate allusion to the various provisions of the statute, the plaintiffs aver that they are not engaged in any way in the transaction of business, as defined in the statute, and are not subject to its terms. The substance of their contention is that they are engaged purely in the transaction of private business under private contracts and do not profess to serve the public in any sense, but only persons of their selection with whom they choose to contract.
It is settled by Spaulding v. McNary, 64 Or. 491, 130 P. 391, 1128, that:
"* * * If the threatened enforcement by prosecuting officers of a void statute will affect the property rights of a party, injunction will lie to prevent the menace from being carried into effect; and that the conduct of such officers, in the case indicated, are their personal acts in which the state is not involved" (citing numerous authorities).
See, also, Chan Sing v. Astoria, 79 Or. 411, 155 P. 378.
In ascertaining the judicial value of a statute in litigation in which it is involved, it is necessary to consider not what actually has been done under it, but what it authorizes and permits to be done. Sterett & Oberle Packing Company v. Portland, 79 Or. 260, 154 P. 410, opinion by Mr. Justice Henry J. Bean. This doctrine was laid down by Mr. Justice Robert S. Bean in Hood River Lumbering Co. v. Wasco County, 35 Or. 498, 512, 57 P. 1017. See, also, Leffingwell v. Lane County, 64 Or. 144, 129 P. 538.
A résumé of the act in question therefore will be helpful. The first section defines the terms "corporation," "person," and "transportation company." This latter term is said to mean "every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, owning, controlling, operating or managing any motor vehicle, motor truck, motor bus, bus trailer, semitrailer or other trailer in connection therewith, used in the business of transportation of persons or property or as a common carrier for compensation over any public highway in this state between fixed termini, or over regular or irregular routes not operating exclusively within the limits of an incorporated city or town."
"Public highway" is said to mean every public street, road, highway, or way in the state. "For compensation" includes transportation of any person for hire or the carrying of any freight or article of commerce for hire in any motor vehicle:
"Provided, that the Public Service Commission may exempt from the operation of this act the transportation of freight or passengers by motor vehicles in rural communities not done on a commercial basis. * * *"
Section 2 of the act forbids any corporation or person, as defined in the act, to operate any motor vehicle, motor truck, motor bus, bus trailer, semitrailer or other trailer for the transportation of persons or property for compensation on any public highway of the state, except in accordance with the provisions of the act. Section 3 of the act reads thus in full:
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