Weaver v. Public Service Commission of Wyoming

Decision Date18 June 1929
Docket Number1561
Citation278 P. 542,40 Wyo. 462
PartiesWEAVER v. PUBLIC SERVICE COMMISSION OF WYOMING [*]
CourtWyoming Supreme Court

APPEAL from District Court, Laramie County; CLYDE M. WATTS, Judge.

Proceedings by W. H. Weaver against the Public Service Commission of Wyoming. Judgment for defendant and plaintiff appeals.

Reversed and Remanded.

For the appellant there was a brief by M. L. Bishop, Jr., of Casper Wyoming, and the cause was submitted for the appellant on Mr Bishop's brief.

The legislature did not intend to give the Public Service Commission power to regulate all transportation; it intended to regulate "transportation companies," and they are defined by Chap. 98, Laws 1927; also, it is intended to limit such regulation to companies operated for compensation as carriers between fixed "termini" or over regular or irregular routes; and routes are well understood terms. Atty. Gen'l v. R. R. Co., 35 Wis. 466; Mellon v. Town of Landing, 11 F. 820-825. Of course the Commission cannot fix rates for hauling, unless they know where the hauling is to be done. Plaintiff is not engaged in the business of transportation between fixed termini; it is not a transportation company; the Commission cannot convert a private carrier into a common carrier. Frost v Com., 70 L.Ed. 1101. Common carriers are obligated to serve the public. R. R. Co. v. Const. Co., 108 P. 467; R. R. Co. v. Henry, (Ind.) 83 N.E. 710; O'Rourke v. Bates, 133 N.Y. 392. A private carrier is not obligated to serve the public. Basset & Stone v. Mining Co., (Ky.) 88 S.W. 318; 4 R. C. L. 549; 18 A. L. R. 1317-20; Faucher v. Wilson, (N. H.) 39 L. R. A. 431; Ropeworks Co. v. Bushnell, 8 B. R. C. 783; 34 Times L. R. 156; Electric Supply Stores v. Gaywood, 100 L. T. N. S. 855; Thompson v. Storage Co., (Mo.) 70 S.W. 938; Chicago v. Mayer, 142 N.E. 842; Co. v. Campbell, (Ore.) 250 P. 213. The act was passed to regulate motor busses, operating between fixed termini and was not intended to regulate private carriers.

For the respondent there was a brief by W. O. Wilson, Attorney General, J. A. Greenwood, Deputy Attorney General, and Fenimore Chatterton of Cheyenne, and oral argument by Fenimore Chatterton.

Chap. 98, Laws 1927, Sec. 1 contains a definition of terms. Transportation companies as there defined includes corporations and persons engaged in transportation. Sanger v. Lukens, 24 F.2d 226. The term "route" used in the act includes any highway between fixed termini, selected at any time for a trip or trips, without regard to regularity for, or continuance of service. Sec. 1 applies to transportation of business in general, over public highways between fixed termini, even though irregular. Public Com. v. Garveloch, 181 P. 272; Penwell v. Cullen, (Del.) 5 Har. 238; McHenry v. Co. (Del.) 5 Har. 248; McHenry v. Co., (Del.) 5 Har. 248; Allen v. Sackridge, 37 N.Y. 342. To be a common carrier, it is not necessary that the route be fixed, or the trips be regular, or between the same points or places. See authorities cited. In addition to Chap. 98, Laws 1927, there are other statutes regulating use of public highways. 5453 C. S. 5518-5522, 5463, 5478, 5454, 5494-5496, 5463, 5478, 5490, 5492 C. S. As to rates see Sec. 5472, 5473, 5479, 5483, 5484, 5489 C. S. See also as to Rebates, Rules and Service, 5528, 5492. It must be presumed that the legislature acted with knowledge of its constitutional powers. 36 Cyc. 1135-1147. The Commission since the enactment of Chap. 150, Laws 1925, has required motor vehicles operating for transportation of persons or property, for hire, to procure a certificate of convenience and necessity. Chap. 98, Laws 1927 was an amplification of that act. Statutes intended to protect the community are lawful and must be sustained. City of Rochester v. West, 164 N.Y. 510; City of Rochester v. Gutberlett, L. R. A. 1915D 209; Stickney v. Company, 200 U.S. 527. Plaintiff has no indefeasible right to maintain his business upon the highways; there is a recognized distinction between the operation of a vehicle for hire, and its operation for private use. Ex Parte Dicky, 85 S.E. 781; Salt Creek Co. v. P. S. C. 37 Wyo. 488. Municipalities may regulate the use of streets and private grounds. Com. v. Kingsbury, 199 Mass. 542; Davis v. Mass., 167 U.S. 43; Hadfield v. Lundin, (Wash.) 168 P. 516; and cases cited. Morris v. Duby, 47 S.Ct. 548; Hendrick v. Md., 238 U.S. 510. The police power of the state is supreme over corporations and persons. Sec. 2, Art. X, Const. It embraces regulations designed to promote public convenience or general welfare. R. R. v. Tranbarger, 238 U.S. 67; R. R. Co. v. Chicago, 166 U.S. 226; Ex Parte Tindall, (Okla.) 229 P. 125. A carrier posing as a private carrier, but in reality a common carrier, is subject to regulation. Goldsworthy v. P. S. C., (Md.) 119 A. 693; Davis v. People, (Colo.) 247 P. 801. A common carrier operating beyond the limits of its license, is liable as a common carrier. Tarley v. Lavary, (Ky.) 47 L. R. A. 383; Chevallier v. Straham, 47 Am. Dec. 639. It is not essential that trips be regular between fixed termini in order to constitute a common carrier. Penwell v. Cullen, 5 Del. 238; Allen v. Sackridge, 37 N.Y. 342; 10 C. J. 41. State v. Sherman, 18 Wyo. 169. The statute operates upon carriers for hire, whether they be common carriers for hire, or call themselves private carriers. Packard v. Banton, 264 U.S. 140; R. R. Co. v. P. S. C., 242 U.S. 255; State v. Price, (Wash.) 210 P. 787. Plaintiff by his agreed statement of facts, has shown himself to be a common carrier and the state has the right under its police powers, to regulate his business upon his properties, the highways.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

By Chapter 98 of the Session Laws of 1927 the legislature of this state passed an act "to supervise and regulate the transportation of persons and property for compensation." By Section 1 of the act persons and corporations are included within the meaning thereof and the term "Transportation company" as used by the act is defined as including every person and corporation operating or managing any motor vehicle "used in the business of transportation of persons or property by contract or agreement for compensation or as a common carrier for compensation over any public highway in this state between fixed termini, or over regular or irregular routes not operating exclusively within the limits of an incorporated city or town." The term "compensation" means, by the definition of that section, "transportation of any person for hire or the carrying of any freight or article of commerce for hire in any motor vehicle." By Section 2 of the act every person and corporation included as above mentioned is forbidden to transport any person or property for compensation on any public highway in this state except in accordance with the provisions of the act. Section 3 gives the Public Service Commission of this state broad and comprehensive powers to regulate any such transportation company; to fix reasonable rates, fares and charges to be charged; to prescribe rules and regulations for the government of such companies; to require them to provide adequate facilities for transportation; to supervise and regulate their accounts, service and safety of operation; to require them to file reports and furnish other data from time to time as the commission may require, and in many other ways to regulate and supervise such companies as is ordinarily done in the case of public service corporations. Section 4 of the act reads as follows:

"No transportation company, as defined in Section one of this act, shall hereafter operate any motor vehicle, motor truck, motor bus, bus trailer, semi-trailer or other trailer in connection therewith for the transportation of persons or property for compensation on any public highway of this state without having first obtained from the Public Service Commission of Wyoming a certificate which shall set forth the special terms and conditions under which permission is granted to operate any of the vehicles above mentioned. No permit held or owned or obtained by any transportation company shall be assigned, leased or transferred except upon authorization of the Public Service Commission of Wyoming. A permit issued by the Public Service Commission to operate any motor vehicle or other vehicle prescribed by this act for compensation over any of the highways of the state of Wyoming shall not be an exclusive right or license to operate over any route, road, highway, or between any fixed termini, but the special conditions of service and protection or such other conditions as may be set out in such permit, together with the general regulations of the Public Service Commission, shall be the conditions with which any other transportation company must comply before being granted a certificate to operate motor vehicles or other vehicles in similar service, and any transportation companies complying with such conditions shall be entitled to a like certificate."

By Section 5 of the act the Public Service Commission is empowered to revoke any certificate upon violation of the conditions therein contained. By Section 6 of the act every transportation company is required to furnish a bond in sufficient amount and with sufficient sureties for the protection of the public or to deposit proper securities in lieu thereof, as the Commission might determine. By Section 8 of the act the Commission is authorized, in the regulation of the acts above mentioned, to require an annual license fee, which is specified in the statute. Other sections of the act provide heavy penalties for the violation of the act. So far as we can see, no other legislative enactments have any...

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