State v. Johnson
| Decision Date | 26 January 1926 |
| Docket Number | 5789. |
| Parties | STATE v. JOHNSON. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.
Samuel S. Johnson was charged with owning and operating an automobile, motor vehicle, and bus line for transportation of persons for compensation without license and without filing bond. Defendant's motion for directed verdict was sustained, and case was dismissed, and the State appeals. Reversed and remanded, with direction to grant the State a new trial.
L. A Foot, Atty. Gen., and I. W. Choate, Asst. Atty. Gen., and E G. Toomey, Counsel for Board of Railroad Commissioners, of Helena, for the State.
Appeal by the state from an order and judgment of dismissal on a directed verdict.
The defendant, Samuel S. Johnson, was placed on trial upon an information filed in the district court of Lewis and Clark county charging that, between the 18th day of April and the 10th day of November in the year 1924, he did "own and operate between Helena and East Helena an automobile, motor vehicle, and bus line for the transportation of persons for compensation, * * * without first obtaining a license, * * * and without filing any bond with the Public Service Commission," etc.
The evidence adduced was rather meager; but three witnesses were called. The first, E. G. Toomey, testified that he was attorney for and secretary of the Board of Railroad Commissioners and in charge of its records; that it appeared therefrom that defendant had never applied for or had issued to him the required permit or license, and had never filed with the board any bond or indemnity insurance such as is required by law and by the rules of the board on the issuance of such permit or license. One Ed. Majors testified that he had on one occasion, during the period named, ridden from East Helena to Helena in defendant's vehicle, which he designated as "Mr. Johnson's truck"; that he asked defendant what the fare was, and, on being informed by defendant that it was one dime, paid that amount to defendant. The witness further testified that from 8 to 12 smeltermen rode in the truck at that time, who also paid the defendant a dime each, and that defendant was working at the smelter "off" and "on." C. Ollie Connor testified that he had ridden many times with defendant during the period stated; that "Mr. Johnson operated a bus with seats on the sides and a top over it;" that, while witness had ridden at times gratuitously, he generally paid 10 cents each way over the route; that he never asked defendant what the are was but just handed him 10 cents. This witness further testified that the bus was usually filled with passengers, and that, at times, defendant could not accommodate all of those who wished to ride with him; that he took his passengers on at the Helena end near the corner of Sixth avenue and Main street, and at the East Helena end, at the smelter. On the cross-examination of Mr. Toomey, counsel for defendant "assumed" that the car driven by defendant was a one-ton or seven-passenger Dodge car, model of 1922.
The essential portions of the act under which the state proceeded in this case (chapter 154, Laws of 1923) are as follows:
Section 3 of the act authorizes the Railroad Commission to regulate such transportation.
Section 4 provides for the issuance of permits to operate, and prohibits such operation without first obtaining such permit or license, and authorizes the commissioners to fix terms and conditions to be imposed.
Section 5 empowers the commission to revoke permits under certain circumstances.
Section 6, as it existed at the time of the alleged offense, requires each person or corporation before commencing operations under such license to file with the commission a good and sufficient "surety company" bond, satisfactory as to sureties and conditions to the commission, "or liability insurance, in such a penal sum as the Railroad Commission may deem necessary to adequately protect the interests of the public, with due regard to the number of persons and amount of property involved, which * * * shall bind the obligators thereunder to make compensation for injuries to persons or loss or damage to property resulting from the operation of such vehicles," etc.
Section 7 extends the power and authority of the commission under the Constitution and laws of the state relative to complaints, hearings, etc., to and over persons and corporations engaged in this method of transportation, and gives the same right of appeal from its orders as in such other matters.
Section 8 of the act provides for a graduated license fee, according to the number, weight, and size of the vehicle used, but not to exceed $10 per annum, "for defraying the expenses of administration of this act and the regulation of the businesses herein described."
Section 9 makes the violation of any of the foregoing provisions, or of the orders, rules, decisions, or regulations of the commission a misdemeanor, and provides a penalty therefor.
Section 10 declares that the act shall not be construed to apply to commerce with foreign nations or among the several states, "except in so far as the same may be permitted under the Constitution of the United States, treaties made thereunder and the acts of Congress."
Section 11 declares that, if any part of the act is declared unconstitutional, such decision shall not affect the validity of the remaining portions, and that the Legislature would have passed such remaining portions irrespective of those portions which may be declared unconstitutional.
At the close of the state's case counsel for defendants stated:
Thereupon, after stating its reason therefor, the court sustained the motion and dismissed the case.
As no appearance was made in this court by the defendant, we are not aided, in the determination of the questions involved, by the usual brief of the respondent, and, were it not for the reasons given by the learned trial judge for his disposition of the case and the question treated in the brief filed by the Attorney General and counsel for the Board of Railroad Commissioners, we would be at a loss to know what matters are before us. From these sources it would seem that no contention was made that the state did not sufficiently prove the allegation of the information to the effect that defendant did, between the dates mentioned, operate some sort of a self-propelled vehicle for the transportation of passengers for compensation and over a regular route between fixed termini, but that the motion was sustained upon the following assumptions:
(1) That the act under consideration is unconstitutional, by reason of the fact that it attempts to delegate to an executive or administrative board or commission legislative and judicial functions, in that it: (a) Permits the Railroad Commission arbitrarily to exempt from its operation "anybody they please"; (b) to fix the amount of license fees required; (c) to fix the amount of the bond or indemnity insurance which shall be filed; and (d) to make rules and regulations governing the issuance of permits and the conduct of the business engaged in under such permit or license.
(2) That, if the act is constitutional, it is fatally defective, in that it cannot be determined therefrom what is meant by the term "motor vehicle" as defined therein.
(3) That the evidence is insufficient to warrant a submission of the case to the jury for the reason that the state failed to prove that the vehicle operated came within the purview of the statute by not proving that the vehicle in question was not those exempted.
In justice to the learned trial judge be it said that on the hearing it was frankly admitted that this is but a test case brought to determine the constitutionality of the act, and that it was immaterial which...
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State v. LeFebvre
...on a federal aid highway does not give him authority to use the road for other distinct purposes as a common carrier. See State v. Johnson, 75 Mont. 240, 143 P. 1073. We covered the substance of all claims made by the defendant and find no constitutional or other fault in the statute. Order......