Willis v. Buck

• Decision Date: 04 February 1928
• Docket Number: 6243.
• Citation: 263 P. 982,81 Mont. 472
• Parties: WILLIS v. BUCK et al.
• Court: Montana Supreme Court

263 P. 982

81 Mont. 472

WILLIS v. BUCK et al.

No. 6243.

Supreme Court of Montana

February 4, 1928

Appeal from District Court, Sanders County; Asa L. Duncan, Judge.

Action by C. M. Willis against J. G. Buck and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Heath Youell, of Troy, for appellants.

A. S Ainsworth, of Thompson Falls, and E. G. Toomey, of Helena for respondent.

F. A Silver, of Helena, amicus curiæ.

GALEN J.

This is an action in injunction to permanently restrain and enjoin the defendants from operating motor vehicles as a common carrier of passengers and personal effects incident to passenger service over the public highways between the towns of Plains, Hot Springs, and Camas, Mont. Upon issue joined the cause was tried before the court without a jury, at the conclusion of which the court made its findings of fact and conclusions of law in plaintiff's favor and directed the issuance of a permanent injunction. Judgment was accordingly duly entered, and the appeal is prosecuted therefrom.

It appears that on or about the 15th day of April, 1926, upon compliance with the law and the regulations of the board of railroad commissioners, the plaintiff was duly and regularly licensed by that board to operate motor vehicles for hire in passenger service over such route. The license so issued granted to him the exclusive right and privilege of transporting passengers and their luggage between the points named, and is still in force and effect. On or about July 3, 1926, the defendants made application to such board for an order granting to them a license to operate motor vehicles in providing passenger and express service over the identical route and highways between the same termini. At a public hearing held before the board at the town of Plains, the plaintiff and the defendants and others interested were present. After the conclusion of such hearing the board, on or about July 27, 1926, denied the defendant's application, upon the ground that adequate service is being provided. Subsequent to such order of the board the defendants continued to operate in defiance thereof, resulting in this proceeding.

The defendants' assignments of error present two questions proper for consideration in disposition of this appeal, viz.: (1) The jurisdiction of the court; and (2) the constitutionality of the law. Both will be treated and disposed of in the order stated.

The statute, chapter 154, Laws of 1923, provides:

"No transportation company, as defined in section one of this act, shall hereinafter operate any motor vehicle, motortruck, motor trailer, bus trailer, semi-trailer or other trailer in connection therewith for the purpose of transportation of persons or property for compensation on any public highway of this state without first having obtained from the railroad commissioners of Montana a certificate which shall set forth the special terms and conditions under which permission is granted to operate any of the vehicles above mentioned. * * * A permit issued by the railroad commission to operate any motor vehicle or any other vehicle prescribed by this act for compensation over any of the highways of the state of Montana shall not be an exclusive right or license to operate over any route, road, highway or between any fixed terminals, but said commission shall have the power after hearing, when the applicant requests a certificate to operate in a territory already served by a certificate holder or licensee, under this act, only when the existing auto transportation company or companies serving such territory, route or stage line, does not provide adequate transportation facilities and service to the satisfaction of the commission, and in all other cases with or without hearing, to issue said certificate as prayed for, or for good cause shown to refuse to issue same or to issue it for the partial exercise only of the said privilege sought, and may attach to the exercise of the rights granted by said certificate such terms and conditions as in its judgment the public convenience and necessity may require." Section 4.

1. As to the jurisdiction of the court, it is the defendant's contention that a court of equity is without jurisdiction since an adequate remedy is provided by the law, viz. criminal prosecutions or actions to recover damages sustained. We see no merit in this contention. Where, as here, plaintiff is being interfered with in the exercise of a franchise conferred upon it by the state, the mere fact that a penalty attaches is not sufficient to deny relief by injunction. The facts stated are sufficient to warrant injunctive relief, thus preventing a multiplicity of actions at law. Wheeler v. McIntyre, 55 Mont. 295, 175 P. 892.

Mr. Pomeroy in his work on Equity Jurisprudence (2d Ed.) states the correct rule as follows:

"An injunction is the appropriate remedy to protect a party in the enjoyment of an exclusive franchise against continuous encroachments. 'Such continuous encroachments constitute a private nuisance, which courts of equity will abate by

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