State ex rel. Public Utilities Commission v. Nelson

• Decision Date: 20 June 1925
• Docket Number: 4207
• Citation: 238 P. 237,65 Utah 457
• Court: Utah Supreme Court
• Parties: STATE ex rel. PUBLIC UTILITIES COMMISSION OF UTAH v. NELSON (NEILSON, Intervener)

238 P. 237

65 Utah 457

STATE ex rel. PUBLIC UTILITIES COMMISSION OF UTAH v. NELSON (NEILSON, Intervener)

No. 4207

Supreme Court of Utah

June 20, 1925

Appeal from District Court, Third District, Salt Lake County; Wm. M McCrea, Judge.

Suit by the State, on the relation of the Public Utilities Commission, to restrain C. W. Nelson from conducting a stage line operated by him on a public highway, in which James Neilson intervened. From an adverse judgment, the Commission and intervener appeal.

AFFIRMED.

Harvey H. Cluff, Atty. Gen., for appellant Utilities Commission.

Young Boyle & Moyle, of Salt Lake City, for appellant Neilson.

Fabian & Clendenin, of Salt Lake City, for respondent.

STRAUP J. GIDEON, C. J., and THURMAN, FRICK, and CHERRY, JJ., concur.

OPINION

STRAUP, J.

James Neilson, the intervener, was granted a certificate of convenience and necessity by the Public Utilities Commission of Utah authorizing him to operate an automobile stage line carrying passengers and freight between Salt Lake City and Brighton, Utah. Brighton is a summer resort in the mountains at the head of Big Cottonwood Canyon about 30 miles easterly of Salt Lake City. About one-half of the designated route of the intervener was along and over the canyon road, the only accessible means by automobile or other conveyance to Brighton or intermediate points in the canyon. The intervener maintained two terminal stations, one at Salt Lake City, the other at Brighton, and five or six stations between those points. He operated a stage line on schedule and at fixed charges approved by the commission. He claimed to have been equipped to take care of all the transportation and traffic between Salt Lake City and Brighton and intermediate points, and that there was no necessity for any other public utility operating an auto stage line between such points. His route was along and over the public highway. The highway in the canyon is traversable by automobile only in the summer months or open seasons. Between Brighton, the head of the canyon, and the mouth of the canyon are a number of other summer resorts. About five miles west of Brighton, down the canyon, is what is called the "Community Camp." It is conducted and maintained by the Utah Out-Door Association, a corporation organized under the laws of Utah for only eleemosynary purposes, with its object to provide at minimum expense an outing camp for persons not otherwise able to obtain camping facilities and conveniences. The association had a special permit from the government to operate the camp on the National Forest Reserve. The supervisor of the reserve was one of the directors of the association, and was in immediate charge of the camp. Persons desiring to attend the camp were required to make arrangements to do so through the office of the National Forest Reserve. To meet in part the expense of maintaining the camp, including tents, stoves, beds, tables, etc., the association made a charge of $ 11 for four persons for one week and $ 14 for two weeks, which charge included transportation to and from the camp. In 1923 the association accommodated at the camp about 900 persons. It applied to the commission for a permit to operate a stage line to carry its guests to and from the camp. The commission denied the application. Then, to accommodate its guests and persons attending the camp, the association entered into a contract with the defendant, C. W. Nelson, by the terms of which he during the months of July and August, for a consideration of $ 20 a day, undertook and agreed to operate an automobile omnibus, equipped with pneumatic tires, cushion seats, and suitable covering and having a capacity to carry at one time at least 15 adult passengers, between Salt Lake City and the camp, making two trips a day. He further agreed to maintain at Salt Lake City a suitable depot for passengers and baggage. Each passenger, free of charge, was entitled to baggage not to exceed 50 pounds. A charge of 1 cent a pound was made in excess of 50 pounds, and 1 cent a pound for all freight unaccompanied by passenger tickets. All such charges and collections were turned over to the association. In pursuance of such contract the defendant operated such "bus" or stage line over and along the highway in the canyon, the only accessible pass to and from the camp. With a few exceptions the defendant transported no persons except those who were guests and entitled to privileges of the camp, and all persons transported by him were required to produce or procure tickets from the association entitling them to such transportation. The defendant had no certificate or permit from the commission, nor did he apply for any.

The Commission, as plaintiff, brought this action to restrain the defendant from conducting the stage line so operated by him. The intervener joined therein. The court found the facts as hereinbefore indicated, and held that the defendant operating the stage line under contract with the association in carrying guests entitled to privileges of the camp was not a common carrier nor engaged in operating a public utility, and hence it was lawful for him to carry on such operations without a permit or certificate from the commission, but restrained him from carrying passengers for compensation, who were not guests or intending to become guests of the camp, without a permit or certificate from the commission.

The commission and intervener appeal. It is contended by them that under subdivisions 6, 13, 14, and 28 of section 4782 and of sections 4798 and 4818, Comp. Laws Utah 1917, the defendant was a common carrier, and as such operating a public utility within the meaning of the Public Utilities Act, and that to lawfully carry on such operations he was required to have a certificate from the commission; and inasmuch as it was conclusively shown he had no such certificate, it is urged the court erred in refusing to restrain the operations carried on by the defendant, even as to the transportation of guests entitled to privileges of the camp. To support such contention the appellants cite the following cases: Public Utilities Commission v. Garviloch, 54 Utah 406, 181 P. 272; Terminal Taxicab Co. v. District of Columbia, 241 U.S. 252, 36 S.Ct. 583, 60 L.Ed. 984, Ann. Cas. 1916D, 765; Utah Copper Co. v. Public Utilities Comm., 59 Utah 191, 203 P. 627; Haddad v. State, 23 Ariz. 105, 201 P. 847; Utah Hotel Co. v. Public Utilities Comm., 59 Utah 389, 204 P. 511; Vandalia R. R. Co. v. Stevens, 67 Ind.App. 238, 114 N.E. 1001; State v. Union Stock Yards Co., 81 Neb. 67, 115 N.W. 627. In such connection cases also are cited to the effect that a common carrier cannot, by special contract, change his status as such; among them the case of Campbell v. A. B. C. Storage Van Co., 187 Mo.App. 565, 174 S.W. 140. Other cases are also cited on the question who is and who is not a common or private carrier. The principles of law announced in the cited cases are readily admitted. However, we think they are not applicable to the...