Western Transp. Co. v. People, 11905.

• Decision Date: 31 October 1927
• Docket Number: 11905.
• Citation: 261 P. 1,82 Colo. 456
• Parties: WESTERN TRANSP. CO. v. PEOPLE.
• Court: Colorado Supreme Court

261 P. 1

82 Colo. 456

WESTERN TRANSP. CO. v. PEOPLE.

No. 11905.

Supreme Court of Colorado, En Banc.

October 31, 1927

Rehearing Denied Nov. 21, 1927.

Error to District Court, Denver County; Geo. F. Dunklee, Judge.

Suit for injunction by the People against the Western Transportation Company. To review a decree in favor of the People, defendant brings error and applies for a supersedeas.

Supersedeas denied, and judgment affirmed.

On Petition for Rehearing.

M. W. Spaulding, of Denver, for plaintiff in error.

William L. Boatright, Atty. Gen., and Ralph L. Carr, Asst. Atty Gen., for the People.

SHEAFOR J.

The defendant in error, hereinafter referred to as the people, or the plaintiff, brought this suit against the plaintiff in error, the Western Transportation Company hereinafter designated as the company, or defendant, asking for the issuance of a temporary injunction restraining and prohibiting defendant from operating any motor vehicle affording a means of transportation similar to that ordinarily afforded by railroads, by indiscriminately accepting, carrying, laying down, discharging, and delivering freight and express, between fixed points and over established routes for hire within the state of Colorado, and as a common carrier therein, without first having obtained a certificate of public convenience and necessity from the Public Utilities Commission of this state, and that such injunction be made permanent.

The court found for the plaintiff and ordered that a temporary injunction issue as prayed for, which was later made permanent, Defendant prosecutes error and applies for a supersedeas.

On June 24, 1926, defendant filed with the Public Utilities Commission an application for a certificate of convenience and necessity in order that it might transact the business of transporting freight and express within the state of Colorado. The application for the certificate was denied by the commission on March 7, 1927.

Upon the trial before the court, Alva W. Dornon testified that he had been general manager of the defendant since it was incorporated, and that the company was then, at the time of the trial, engaged in the operation of motor trucks for the transportation of freight and express between various towns in the state of Colorado; also, that the company accepted shipments of freight and express from the public generally for transportation between points in Colorado. He also testified that they filed their application with the Public Utilities Commission for license, which was refused, and that the company was still continuing just the same as they were before the application had been filed. This evidence together with admissions made by the defendant in its answer shows, we think, that defendant was engaged in intrastate business within the state of Colorado.

The defendant alleged, as one of its defenses, that it was engaged in interstate commerce. The evidence on behalf of defendant tended to show that it was engaged in interstate transportation of freight and express. The defendant's contention is that to prohibit defendant from operating in this state would be to interfere with interstate commerce, and deprive the company of rights that are guaranteed to it by the Fourteenth Amendment to the federal Constitution; that it would be a violation of the Constitution of the state of Colorado, and also a violation of the federal aid statutes (Highway Act [23 USCA §§ 1-53]); also, that the Public Utilities Commission has no jurisdiction over the company' operations, and that in so far as the Colorado statutes would permit any prohibition of the company's operations, they are unconstitutional.

From the foregoing, I think we may assume that defendant was, at the time of the institution of this suit, engaged in both interstate and intrastate commerce, and was not engaged exclusively in one or the other. The defendant insists, however, that the evidence shows it was engaged exclusively in interstate commerce, but the able and ingenuous argument of defendant's counsel has not convinced us. The foregoing evidence, admissions, and the application do not sustain him. His argument is that the application for certificate does not show whether it was for intrastate or interstate commerce. But counsel's further argument is to the effect that the company could not be required, by the state, to obtain a certificate of convenience and necessity to do an interstate business. It seems, then, that it logically follows that the company did not apply for a certificate to do an interstate, but did apply for one to do an intrastate business.

We do not think, as contended by counsel, that the injunctive orders were intended to, nor do they, enjoin defendant from engaging in interstate commerce, and that they should not be so construed, but if so, then to that extent the decree of the court is inoperative.

It will be observed that plaintiff was not asking the court to restrain interstate shipments, but merely to prohibit the company from acting as a common carrier in the state of Colorado for the transportation of freight and express within the state without the certificate of public convenience and necessity required by the statute.

The evidence does not show the extent of the interstate shipments as compared with intrastate business transacted by the company.

The plaintiff cites Interstate Busses Corporation v. Holyoke Street Railway Co. et al., 273 U.S. 45, 47 S.Ct. 298, 71 L.Ed. 530, decided January 3, 1927, and other cases.

We think the case of Clark et al. v. Poor et al., decided by the Supreme Court of the United States May 31, 1927, 47 S.Ct 702, 71 L.Ed. 1199, opinion by Mr. Justice Brandeis, is decisive of the instant case. In that case, it appears that, in 1923, Ohio passed a transportation act (Gen. Code, §§ 614-84 to 614-102) which provided that a motor transportation company desiring to operate within the state should apply to the Public Utilities Commission for a certificate so to do and should not begin to operate without first obtaining it. Also, that the company should, at the time of the issuance of the certificate and annually thereafter, pay a tax graduated according to the number and capacity of the vehicles used. The appellants Clark and others operated, as common carriers, a motor truck line between Aurora, Indiana, and Cincinnati, Ohio, exclusively in interstate commerce. They ignored the...