State By and Through Heltzel v. O. K. Transfer Co.

• Decision Date: 15 October 1958
• Citation: 215 Or. 8,330 P.2d 510
• Parties: STATE of Oregon, acting by and through Chas. H. HELTZEL, Public Utility Commissioner of Oregon, Respondent, v. O. K. TRANSFER COMPANY, an Oregon corporation, and A. L. Vincze, its President and Manager, Appellants.
• Court: Oregon Supreme Court

Page 510

330 P.2d 510

215 Or. 8

STATE of Oregon, acting by and through Chas. H. HELTZEL Public Utility Commissioner of Oregon, Respondent, v. O. K. TRANSFER COMPANY, an Oregon corporation, and A. L Vincze, its President and Manager, Appellants.

Supreme Court of Oregon.

Argued and Submitted Jan. 29, 1958.

Reargued and Submitted June 12, 1958.

Decided Oct. 15, 1958.

R. B. Maxwell, Klamath Falls, argued the cause for appellants. On the brief were Maxwell & Goddard, Klamath Falls.

Robert R. Hollis, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were John R. McCullough, Asst. Atty. Gen., and Robert Y. Thornton, Atty. Gen.

Before PERRY, C. J., and ROSSMAN, LUSK, WARNER, McALLISTER and SLOAN, JJ.

WARNER, Justice.

The State of Oregon, acting by its Public Utility Commissioner, ¹ sought and obtained a decree enjoining the defendants, O. K. Transfer Company, a corporation, and A. L. Vincze, its president and manager, from certain transportation operations alleged to be in violation of its several permits issued by the Commissioner. From this decree the defendants appeal.

For convenience we will hereinafter refer to the plaintiff as 'the Commissioner' and to the defendants as 'the Company.'

The Company for sometime past was authorized under a Class A permit (ORS 767.135) to operate as a common carrier of property in intrastate commerce on irregular routes in Klamath and Lake Counties, Oregon.

It also held a Class D permit (ORS 767.115) authorizing it to lease, rent, or otherwise provide, motor vehicles for temporary use in the transportation of property only at the following places in Oregon: Medford, Eugene, Portland and Klamath Falls. The latter, or Class D permit, is commonly called 'U-Drive' authority.

Both permits were issued by the Commissioner pursuant to the Oregon Motor Transportation Code (ORS, ch. 767). The Company, however, had no contract carrier permit.

The Company had published and filed with the Commissioner tariffs providing rates applicable to its authorized services as a common carrier.

Shortly after the issuance of the 'U-Drive' permit, it transferred its various vehicles and equipment, including all of its trucks and tractors designed for heavy loads, to its 'lease and rental' operations.

The Commissioner complains that the Company has rendered carrier services for hire at rates different from those specified in the tariffs filed with the Commissioner and represented itself to the public as being willing and able to transport property from places of business in Medford, Jackson County, Oregon, and in Klamath Falls, Klamath County, Oregon, as such carrier for rates different than those specified in its tariffs on file.

The trial resulted in a decree which restrained the defendants in their activities in the leasing and renting of vehicles, owned or controlled by them: (1) by providing drivers for the vehicles who were in the employ of defendants and subject to defendants' direction, supervision or control; (2) from procuring, or offering to procure, special permits from any governmental agency authorized to issue the same for operation of its oversize or overweight vehicles, unless the application for such permits: (a) disclosed the nature of the interest of the various parties to the transaction; and (b) unless the application was accompanied with a joint undertaking in the name of lessor and lessee, whenever such undertakings are required by any governmental units or offices; (3) from representing to the public in any manner whatsoever that defendants, in addition to the activities above restrained, were willing and able to procure and provide such special permits issued in the Company's name; and (4) when acting as a common carrier with such vehicles, from rendering transportation service at charges or rates different from those of Company tariffs on file in the office of the Commissioner.

The operations of the Company, which are the basis for the Commissioner's complaint, were accomplished under the imagined protection of its Class D or 'U-Drive' permit, under which the Company was not required to file tariff schedules, in contradistinction to its Class A permit, which obligates the Company to abide by its established and filed tariffs.

The sole issue presented is whether the activities of the Company under its Class D or 'U-Drive' permit constitute transportation-for-hire carrier services.

We deem it of little importance in this case whether we declare the Company's operations to be those of a common carrier or contract carrier. Transportation activity of both such carriers is subject to regulation and authorization by licensing under the Motor Transportation Act; both involve transportation for hire. ORS 767.005(5) and 767.010(1). If it be found that the Company was in reality operating as a common or contract carrier, then the Company would, in either event, notwithstanding the Company's reliance upon the 'U-Drive' permit as a defense, be violating the Motor Transportation Act. For if the Company's operations as a 'lessor' be, in fact, common carrier transportation, for which the defendant Company holds a permit, then its charges will be found to be at variance with its filed tariffs and the routes stipulated in its permit. If, on the other hand, the Company be found to be engaged in the activities of a contract carrier for hire under any of its 'leases,' it would be operating in violation of the act because it has no permit for such type of transportation.

The Company contends that it was properly exercising its 'U-Drive' authority to engage in the business of leasing and renting their vehicles without restrictions as to any filed tariffs or territory. It further claims that in furnishing additional equipment, such as dollies and similar equipment for heavy loads in house moving operations, or furnishing other services, such as drivers, or obtaining permits for its lessees, for an additional charge, it was not functioning as a motor carrier for hire.

The appellants present three assignments of error for our consideration. The first challenges the authority of the trial court to issue the instant injunction under the statute relied upon (ORS 767.465). The second asserts that the court misinterpreted the Motor Transportation Code as a whole. The third assignment represents that the Commissioner failed to sustain the burden of proving the allegations of his complaint.

We now address ourselves to the first assignment relating to the issuance of the injunction.

The first assignment projects a question of construction under ORS 767.465 never before construed by this court. ORS 767.465(1) provides:

'(1) Whenever it appears to the commissioner that any person is engaged or about to engage in any acts or practices which constitute or will constitute a violation of this chapter, or of any rule, regulation or order issued under this chapter, he may bring an action in the proper circuit court in the State of Oregon to enjoin such acts or practices and to enforce compliance with such chapter, rule, regulation or order. Upon a proper showing, a permanent or temporary injunction, decree or restraining order shall be granted without bond.' (Emphasis ours.)

This assignment urges that the trial court erred in holding that the above statute does not require a showing of irreparable harm and inadequacy of law or other statutory remedy. It is appellants' contention that the words, 'proper showing,' necessarily include the jurisdictional requirements for injunctive relief commonly found in equity tribunals. In support of this position, they earnestly argue, without citation to any authority, that the legislative intent and purpose behind the statute was to bestow only an alternative remedy on the Commissioner in an extraordinary situation. In other words, that a proper and usual showing of actual harm and the lack of adequate remedy was nevertheless mandatory.

Even though ORS 767.465(1) is silent in this particular, an examination of the specific term in question, i. e., 'proper showing,' will reveal that such argument is untenable. The word 'showing,' as similarly employed in the U. S. Emergency Price Control Act, sanctioning injunctive relief, has been construed to mean a proper and adequate disclosure or demonstration appealing to a court of equity rather than a fancied theory. Bowles v. Eastern Sugar Associates, D.C.Md.1946, 64 F.Supp. 509, 515. The words, 'show' or 'showing,' are said to mean to 'make apparent or clear by evidence, to prove.' Coyle v. Commonwealth, 1883, 104 Pa. 117, 133; Black's Law Dictionary (4th ed.) 1549. In the early case of Spalding v. Spalding, 1948, 3 How. Prac. N. Y., 297, the term 'showing' meant only such a disclosure of facts as would satisfy the statute.

Applying this constructions of the terms, 'show' and 'showing,' to the synonymous phrase, 'proper showing,' it is explicit that the legislature did not intend the connotation assigned by defendants. At best, the statute only prescribes the degree of proof demanded of the Commissioner when seeking an injunction rather than a type or kind of proof as contended by appellants. We feel constrained to follow the postulates of the above cases. Accordingly, we hold that ORS 767.465 does not specifically, either directly or by implication, require the Commissioner to show irreparable injury or lack of other remedies in order that he may have injunctive relief against violations of the Motor Transportation Code.

At this point, it is significant to note that the remedy here is directed towards conduct criminal in nature. At common law, an injunction was not available to restrain criminal conduct. Thus, it is apparent that the legislature intended to confer upon the courts a special power unfamiliar to the common law. This conclusion lends credence to the Commissioner's position that injunctive relief under ORS 767.465, supra, is not conditioned upon common-law...