Reed v. United States Vanadium Corporation

• Decision Date: 17 November 1943
• Docket Number: No. 2746.,2746.
• Parties: REED v. UNITED STATES VANADIUM CORPORATION.
• Court: U.S. Court of Appeals — Tenth Circuit

138 F.2d 846 (1943)

REED v. UNITED STATES VANADIUM CORPORATION.

No. 2746.

Circuit Court of Appeals, Tenth Circuit.

November 17, 1943.

Richard E. Conour, of Del Norte, Colo., for appellant.

R. Hickman Walker, of Denver, Colo. (Moynihan, Hughes & Sherman, of Montrose, Colo., and Worth Allen, of Denver, Colo., on the brief), for appellee.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

Prior to January 26, 1937, Rupert E. Borden was engaged in hauling ore and mine supplies for the United States Vanadium Corporation¹ as a contract motor carrier between Grand Junction and Uravan, Colorado, and between points in the vicinity of Uravan. On that date, he applied to the Colorado Public Utilities Commission² for a certificate of public convenience and necessity to operate as a common carrier of passengers and freight between Grand Junction and Uravan and in the territory adjacent thereto. A proposed schedule of rates and a proposed time schedule were attached to the application. By its order dated April 7, 1937, the Commission granted the certificate. The order required Borden to file a tariff of rates, rules, and regulations and a time and distance schedule as provided in the Rules and Regulations of the Commission, within 20 days from April 7, 1937. Borden never filed or published such tariff or schedule. On May 1, 1937, Borden sold his transportation business to the Valley Truck and Implement Company.³ On June 12, 1937, Valley filed with the Commission an application for authority to purchase the transportation business of Borden and to have the certificate transferred to it. With its application, Valley filed a proposed schedule of rates and a proposed time schedule identical with those attached to Borden's application. On December 1, 1937, the Commission entered its order authorizing Borden to transfer the certificate to Valley. The order provided that such transfer should become effective only if and when Valley should have the necessary insurance on file with the Commission. It provided that the tariff of rates and regulations of Borden under the certificate should become and remain those of Valley until changed according to law and the Rules and Regulations of the Commission. In a letter transmitting a copy of its order to Valley, the Commission said:

"Your attention is directed to the requirements of filing of tariff or time schedule as set forth in the enclosed decision. Failure to file will be considered sufficient cause to revoke your certificate."

Valley never filed or published a tariff or a time and distance schedule.

By letter dated April 14, 1937, the Commission advised Borden that he would not be entitled to operate until the Commission had received

"Certificate covering Public Liability Insurance

Certificate covering Property Damage Insurance

Policy covering Cargo Insurance

Complete Description of Equipment

Issuance Fee."

The letter further called Borden's attention to the requirements of the order that he file a tariff and a time schedule.

Borden did not file or cause to be filed with the Commission any insurance covering his operations as a common carrier.

Valley filed insurance policies with the Commission on July 22, 1937, August 6, 1937, September 11, 1937, December 7, 1937, and February 23, 1938. All of these were filed under its commercial carrier permit No. C-4121, with the exception of a cargo liability insurance policy filed August 6, 1937. The cargo policy was canceled on April 24, 1938, and no policy was substituted therefor.

The Commission prescribed rates by its decisions 7118, 8009, and 8396, issued on February 5, 1936, July 17, 1936, and September 21, 1936, respectively. The order of February 5, 1936, directed all motor vehicle common carriers "to establish, effective on the 1st day of April, A. D. 1936, upon notice to the Commission and to the general public, by not less than one day's filing and posting in the manner prescribed in Section 16 of the Public Utilities Act, and thereafter to maintain and apply to the transportation of freight and property within the State of Colorado" the rates, classifications, exceptions, rules, and regulations set forth in the order. The supplemental orders of July 17, 1936, and September 21, 1936, contained similar requirements with respect to the filing and publication of tariffs. Neither Borden nor Valley ever filed or published tariffs in accordance with the requirements of such orders.

Between May 1, 1937, and March 31, 1938, Valley undertook to operate as a motor vehicle carrier between Grand Junction and Uravan and between points in the vicinity of Uravan. Valley hauled freight for Vanadium. Vanadium paid Valley therefor in accordance with a verbal contract entered into about May 1, 1937, under which Vanadium agreed to pay Valley operating costs, plus 20 per cent of its investment. Valley made a demand upon Vanadium for alleged undercharges claimed to be due Valley and Valley filed with the Commission a petition seeking relief against Vanadium.

Section 6, Ch. 29, C.S.A. 1935, in part, reads:

"Every common carrier, subject to the provisions of this article, shall file with the commission created by this article, print and keep open to public inspection, schedules showing all the rates, fares and charges for transportation between points on its own route in this state, * * *." (Italics ours.)

Section 15, Ch. 127, Laws 1913, known as "The Public Utilities Act," (§ 16, Ch. 137, C.S.A. 1935), in part, reads:

"Under such rules and regulations as the commission may prescribe, every public utility shall file with the commission within such time and in such form as the commission may designate and shall print and keep open to public inspection schedules showing all rates, tolls, rentals, charges and classifications collected or enforced, or to be collected and enforced, * * *." (Italics ours.)

Section 326, Ch. 16, C.S.A.1935, reads:

"All provisions of the public utilities act of the state of Colorado (chapter 137), and all acts amendatory thereof or supplemental thereto, shall, insofar as applicable, apply to all motor vehicle carriers subject to the provisions of this subdivision."

Section 301, Ch. 16, C.S.A.1935, reads:

"All motor vehicle carriers as defined in this subdivision are hereby declared to be public utilities within the meaning of the public utility laws of this state, and are hereby declared to be affected with a public interest and subject to this subdivision and to the laws of this state, including the regulation of all rates and charges, now in force or that hereafter may be enacted, pertaining to public utilities, so far as applicable, and not in conflict therewith."

Rule 36 of the Rules and Regulations of the Commission adopted June 8, 1937, and effective June 15, 1937, in part, provides:

"(a) All motor vehicle common carriers shall file with the Commission one copy of a...