State v. Smith

• Decision Date: 07 February 1927
• Docket Number: Criminal 647
• Parties: STATE, Appellant, v. M. M. SMITH, Respondent
• Court: Arizona Supreme Court

252 P. 1011

31 Ariz. 297

STATE, Appellant, v. M. M. SMITH, Respondent

Criminal No. 647

Supreme Court of Arizona

February 7, 1927

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.

Mr Arthur T. La Prade, County Attorney, and Mr. Charles A Carson, Jr., Deputy County Attorney (Mr. Lin H. Orme, Jr., of Counsel), for the State.

No appearance for Respondent.

OPINION

ROSS, C. J.

This is an appeal by the state from an order sustaining a demurrer to an information charging the defendant with "operating a truck for the transportation of freight and property for hire and compensation, over a certain public highway, to wit, Yuma Road and Christy Road, . . . over which said public highways one J. M. Carter there being was then and there operating an auto truck for the transportation of freight under a certificate of convenience and necessity issued by the corporation commission of the state of Arizona without and before the said M. M. Smith first obtaining or securing permission from or a certificate of convenience and necessity from the corporation commission. . . ."

The demurrer raised the question as to the sufficiency of the above facts to make out a public offense, and that is the only question before us.

The county attorney of Maricopa county has filed a brief challenging the correctness of the court's ruling, but no one has appeared for the defendant.

It is the contention of the appellant that the information is in the language of the statute and is sufficient under the rulings of this and other courts. If the facts charged against the defendant constitute a public offense, it is because they are denounced as such by the provisions of chapter 130, Laws of 1919, entitled:

"An act providing for the supervision, regulation and conduct of the transportation of persons, freight and property for compensation over the public highways of the state of Arizona by automobiles, jitney busses, auto trucks, stages and auto stages."

Our attention is called to section 4 of said chapter as being in practically the same language as the information, but we are satisfied that we cannot rest our conclusion upon that incident alone. We must look to the whole act.

The ruling of the trial court, as we are made to understand, was based upon the ground that the information failed to show by its allegations, or otherwise, whether the defendant was engaged in the transportation of freight and property as a common carrier, or was engaged in such transportation as a private business. It is the duty of the courts to construe said act if possible to preserve not only its intention but also its validity. If it be held that the legislature intended to confer on the corporation commission the power to forbid the use of the public highways of the state to private carriers of freight and passengers until and unless such "private carrier submit to the conditions of becoming a common carrier and of being regulated as such by the railroad commission," the law would be unconstitutional. In other words, if the legislation be construed as an attempt to convert a private carrier into a public carrier by the requirement that he first obtain from the corporation commission a certificate of convenience and necessity and conform to the regulations applicable to a common carrier before he may use the public highways, it will amount to a deprivation of his property without due process of law. The legislature cannot by fiat convert a private carrier into a common carrier. Frost v. Railroad Com., 271 U.S. 583, 70 L.Ed. 1101, 46 S.Ct. 605; Michigan Public Utilities Com. v. Duke, 266 U.S. 570, 36 A. L. R. 1105, 69 L.Ed. 445, 45 S.Ct. 191.

However we think the whole context of chapter 130 evidences an intention upon the part of the legislature to limit and confine its provisions and regulations to common carriers of passengers and freight. Although in many instances where the act mentions the carriers intended to be regulated they are described simply as "corporation, person, firm, or association, their lessees, receivers, or trustees," section 3, which provides...