Walter v. Board of R. R. Com'rs, 11574

• Decision Date: 23 July 1969
• Docket Number: No. 11574,11574
• Citation: 457 P.2d 479,153 Mont. 384
• Court: Montana Supreme Court
• Parties: R. G. WALTER, d/b/a City Transfer & Storage, Plaintiff and Appellant, v. The BOARD OF RAILROAD COMMISSIONERS of the State of Montana, and Paul T.Smith, Louis G. Boedecker and Ernest C. Steel, the Commissioners thereof,Defendants and Respondents.

Page 479

457 P.2d 479

153 Mont. 384

R. G. WALTER, d/b/a City Transfer & Storage, Plaintiff and Appellant, v. The BOARD OF RAILROAD COMMISSIONERS of the State of Montana and Paul T.Smith, Louis G. Boedecker and Ernest C Steel, the Commissioners thereof,Defendants and Respondents.

No. 11574.

Supreme Court of Montana.

Submitted June 13, 1969.

Decided July 23, 1969.

Risken & Scribner, John H. Risken, argued, Helena, for appellant.

Anderson, Symmes, Forbes, Peete & Brown, Billings, William E. O'Leary, argued, Helena, for respondents.

JAMES T. HARRISON, Chief Justice.

This is an appeal by plaintiff-carrier, R. G. Walter, d/b/a City Transfer and Storage, from an order and judgment entered in the district court of Flathead County which sustained an August 2, 1965 order of the Board of Railroad Commissioners (hereinafter called the Board), dismissing the complaint of plaintiff and entering judgment for the defendants. This order and judgment determined that the authority contained in Montana Railroad Commission Intrastate Certificate of Public Convenience and Necessity No. 2081 (hereinafter referred to as MRC 2081) issued to plaintiff did not include the authority to transport 'petroleum or petroleum products' within the meaning of the term 'commodities' as found in MRC 2081.

MRC 2081 authorized plaintiff to transport 'heavy equipment, tractors, power shovels, merchandise and commodities' as a class 'C' carrier, subject to the following limitation: 'Hauling must be limited to the type requiring heavy duty trucking.'

Plaintiff-carrier was apprehended by a fieldman of the Board prior to December of 1964, at which time the carrier was in the process of transporting petroleum or petroleum products for hire upon a public highway. Following a request by plaintiff to the Board for an interpretation of the term 'commodities' as contained in MRC 2081, plaintiff was informed that it did not include authority to transport petroleum or petroleum products. Subsequently a request was made that a meeting be held between the Board and the carrier to discuss MRC 2081, and thereafter, on April 12, 1965, plaintiff-carrier requested that a public hearing be held in order to interpret the scope of the authority contained within MRC 2081.

At the hearing administrative notice was taken of all records on file with the Board relevant to MRC 2081. These files included the original application, the transcript of the original hearing and other records indicating successive transfers which concluded with the transfer to the plaintiff.

Following the public hearing the Board issued its Order No. 3138, holding that the term 'commodities' as contained in MRC 2081 is a general phrase limited by the scope of the preceding specific property types enumerated in the certificate; that the general language relates solely to the preceding specific language; and therefore the general language of the term 'commodities' referred only to such additional commodities that would be of the same type or kind as those specifically set forth preceding the term 'commodities'.

As a result of this order plaintiff filed a complaint in the district court of Flathead County asking review of the Board's action and sought to require the Board to determine that MRC 2081 included authority to haul 'petroleum or petroleum products'. After hearing oral arguments the district court issued the order and judgment from which plaintiff appeals.

This appeal raises two interrelated issues for determination by this Court: (1) whether the Board erred in making its original determination as to the scope of the authority granted under MRC 2081, and (2) whether Board Order No. 3138 was just, reasonable and proper.

Plaintiff argues that the term 'commodities' as used in MRC 2081 includes all items of commerce and thus on its face includes 'petroleum or petroleum products'. Further, plaintiff contends that the words must stand by themselves because MRC 2081 is unambiguous, and therefore, the Board erred in referring to the transcript of the original application for the certificate. With this contention we cannot agree.

Whether the Board erred in making its original determination as to the scope of the authority granted under MRC 2081 must be answered with reference to the authority vested in the Board by the laws of Montana. Section 8-103, R.C.M.1947, provides in part:

'(a) The board of railroad commissioners is hereby vested with power and authority, and it is hereby made its duty to supervise and regulate every motor carrier in this state; * * *. The board shall have power and authority by general order or otherwise to prescribe rules and regulations in conformity with this act applicable to any and all motor carriers.'

Section 8-112, R.C.M.1947, provides in part:

'Any right, privilege or certificate held, owned, or obtained by any motor carrier may be sold * * * as other property only by the authorization of the board. The board may issue the...