Tonopah & G.R. Co. v. Nevada-California Transp. Co., Inc.

• Decision Date: 02 February 1938
• Docket Number: 3147.
• Parties: TONOPAH & G. R. CO. et al. v. NEVADA-CALIFORNIA TRANSP. CO., Inc.
• Court: Nevada Supreme Court

75 P.2d 727

58 Nev. 234

TONOPAH & G. R. CO. et al. v. NEVADA-CALIFORNIA TRANSP. CO., Inc.

No. 3147.

Supreme Court of Nevada

February 2, 1938

Appeal from District Court, Washoe County, Second District; B. F Curler, Judge.

Suit by the Tonopah & Goldfield Railroad Company and others against the Nevada-California Transportation Company, Incorporated to enjoin the defendant from operating motor vehicles on the public highways of Nevada between certain points in competition with plaintiffs. From an adverse judgment, the defendant appeals.

Affirmed.

James T. Boyd, of Reno, for appellant.

Brown & Belford and Walter Rowson, all of Reno, for respondents.

DUCKER Justice.

This suit was instituted by the respondents to enjoin appellant from operating motor vehicles on the public highways of Nevada between Reno and Tonopah, and intermediate points, in competition with respondents, upon the ground that appellant had not obtained from the public service commission a certificate of convenience and necessity, as required by chapter 165, Stats. 1933, and chapter 109, Stats. 1919.

From an adverse judgment the defendant has appealed.

The parties entered into an agreed statement of facts, from which it appears that the Tonopah & Goldfield Railroad Company is a corporation, organized pursuant to an act of our Legislature approved March 22, 1865, and ever since November 1, 1905, has been engaged in the business of owning and operating a standard gauge, steam railroad as a common carrier, in both intrastate and interstate commerce, between the town of Mina and the town of Goldfield, Nev.; that the Southern Pacific Company has been a corporation ever since 1884, and prior to 1905 became and ever since has been qualified to do business in this state, and ever since said year said company has owned and operated a standard gauge steam commercial railroad, engaged in both intrastate and interstate commerce for hire, between Reno, Nev., and Mina, Nev., as a common carrier, at which last-named place it connects with the plaintiff Tonopah & Goldfield Railroad Company. It is likewise stipulated that the Railway Express Agency, Inc., is a corporation organized under the laws of Delaware, and ever since January, 1929, has been and now is qualified to, and ever since November 1, 1905, it or its grantors and predecessor in interest has been, doing business in this state, in the carriage of property for hire, both in interstate and interstate commerce, between the city of Reno and the city of Tonopah, Nev. It is also stipulated that the plaintiff Pacific Motor Transport Company is a corporation and ever since August 1, 1932, qualified to do and doing business as a common carrier for hire between the city of Reno and the town of Goldfield, Nev., and that prior to engaging in said business it applied for and obtained from the public service commission of Nevada a certificate of public convenience and necessity for engaging in business between the city of Reno and the town of Goldfield, Nev.

It is further stipulated that defendant ever since September 1, 1931, has been a corporation duly organized and existing under the laws of the State of Nevada; that said company has, on two separate occasions, applied to the public service commission of Nevada for a certificate of public convenience, authorizing it to engage in the business of transporting, by trucks and automobiles, property for hire, along the highways of Nevada, as a common carrier, between Reno and Goldfield, Nev., and intermediate points; that each of said applications was denied; that in all other respects the defendant has complied with the laws of Nevada.

It is further stipulated that unless restrained by order of court the defendant will continue to transport property for the public in intrastate commerce for compensation, over the public highways, as prior to the signing of the statement of facts.

It is the contention of respondents that pursuant to the act of 1933 the judgment should be affirmed, but in case that act be held unconstitutional, as contended by appellant, the act of 1919 is still in force and effect, and for that reason the judgment must be affirmed.

If we find that the 1933 act is constitutional, it will be unnecessary to consider the prior act.

As we understand the contention of appellant as to the act of 1933, it is that it is unconstitutional in that the title of the act embraces two subjects, contrary to article 4, section 17, of the Constitution, and, further, that the subject-matter of section 7 of the act is not embraced in the title of the act.

There is no better known rule than that every act of the Legislature is presumed to be constitutional, unless it be the one to the effect that no act will be held unconstitutional unless it is clearly so. State v. Board of County Com'rs, 21 Nev. 235, 29 P. 974; State v. Westerfield, 24 Nev. 29, 49 P. 554.

The title of the act of 1933 reads: "An Act declaring the purpose and policy of the legislature relative to use of the public highways of the state in the carrying of persons and property thereon in motor vehicles, defining such vehicles and public highways, providing for the licensing of certain carriers thereon by the public service commission of Nevada and providing and defining its duties in relation thereto, providing license fees for the operation of motor vehicles in carrier service for hire and other service on the public highways of the state, providing liability insurance in certain cases, providing for an official inspector and salary and allowances therefor, providing penalties for the violation hereof and other civil actions for the recovery of license fees herein, providing for the weighing of motor vehicles for license purposes by public weighmasters, and repealing all acts and parts of acts and certain acts of the legislature in conflict herewith; and other matters properly connected therewith."

We are clearly of the opinion that the title of the act quoted states but one subject, and that is "the purpose and policy of the legislature relative to use of the public highways of the state in the carrying of persons and property thereon in motor vehicles." The other matters stated in the title are merely incident to the real subject, and are in no way misleading or confusing. Klein v. Kinkead, 16 Nev. 194; Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879.

If the title of the act had contained no more than that portion quoted, it would have been sufficient, for the section of the Constitution in question contemplates that an act may cover every matter properly connected with the subject embraced in the title. We have often pointed out the purpose of the provision of the Constitution in question. We did so in Ex parte Cerfoglio, 44 Nev. 343, 195 P. 96, and in Ex parte Mantell, 47 Nev. 95, 216 P. 509. In the latter case we at some length dealt with the question of what constitutes the subject of an act, and pointed out that the subject of an act is the matter or thing forming the groundwork of the act in question. Clearly, the groundwork of the act in question in this case is the purpose and policy of the Legislature relative to the use of the public highways of the state in the carrying of persons and property thereon in motor vehicles.

In the case of State ex rel. v. Board of Commissioners of Humboldt County, 21 Nev. 235, 29 P. 974, 975, the same contention was rejected; the court, after stating the purpose of the requirement, stated: "The objections should be grave, and the conflict between the constitution and statute palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraces more than one object."

As we understand, it is...