*1 M2
Argued 21, 1946; January rehearing 14; November affirmed February 18,1947
denied CONSOLIDATED FREIGHTWAYS, Inc. v. FLAGG
(176 (2d) (2d) 422) 239, P. 177 P. (Schafer Hol- Portland & A. Schafer, Donald brief), appellant. Portland, brook, *2 Attorney of Salem, General, Assistant Kimmell, Bex respondent. and J.,* Before C. Bailey, Bossman, Kelly, Belt, and Justices. Hay, Lusk
BOSSMAN, †J.C. by appeal plaintiff an the a decree
This is from moneys paid of the circuit court which holds transportation by plaintiff for services rendered the Army in fall the of 1943 it to the United States were earnings”, part “gross as that term a of its is defined subject § L. and that in O. were 115-517, C. A., by provisions imposed § tax other to the 115-517. proceeding §§ was instituted under This 6-601 to (Uniform Declaratory Judgments L. A. O. C. 6-616, judicial purpose securing Act) a for the declaration or not sums above as to whether mentioned were gross earnings part plaintiff’s and taxable is the Public as such. The defendant Utilities Com- charged is the official missioner, who with the collec- tax. tion of the assignment says: first error finding
“The Court erred fact ‘that the part pick-up delivery time is a of the †* * *’ finding contrary such because service and effects a result not to the evidence the intended Legislature.”
† [*] Chief Chief Justice when this this Justice when opinion case was argued. rendered. assignment
The second of error is: construing Court erred the facts brings statute a manner about clearly specifically taxation of revenues not Legislature failing mentioned to con- strictly according strue facts and the statute import language to the clear used.” appellant freight is a motor common carrier purview Transportation within of our Motor Act, says: §§ 115-501 A. O. C. Section 115-517 115-537, L. “In addition to the license fees or other- taxes imposed by wise law common carriers and and against contract carriers there shall be assessed every from such collected carrier a tax of one (1) per weight public mill combined ton onmile * * * highways, highways, for the use of said apply on act, the cost of the administration of this repair and for of and reconstruction maintenance, * * * public highways. provided further, *3 may, option, common contract and in lieu of the tax or carriers at their charge provided for in section operations pay on all assessed and of 115-517, be public highways carrier over the of state, such day monthly, month before the twentieth following month for tax which the privilege tax to the for incurred, commissioner, highways public in a sum or amount the use of the gross equal per earnings of from the to 6 cent operation motor carrier and each thereof of such * * term‘gross earnings’ *. state, The within this transportation all earned for the include sums shall property public high- persons over the of and/or ways also such the state and sums earned for of unloading loading in therewith, connection delivery charges.” pick-up including also computed appellant its tax chose to have under The gross earnings. its optional method, is, September, In and November October training Army, conducting States while war United engaged Oregon, in Central the services maneuvers appellant daily supplies transport 100 tons through No. 4, from Terminal Bend to some Portland, Oregon points in flexible deemed Central which were appellant’s part truck The heads. was to furnish the necessary trucks drivers. For its services it charged per provisions a flat rate hour under tariff compiled by shortly quote. charge which we shall began truck when the reached Terminal 4 and No. con- Oregon tinued until it returned from Central to that except periods for when terminal, the vehicle was duty. reporting disabled or the driver was off In gross earnings, the commissioner the amount its appellant paid periods did not include the amount for in which awaiting the trucks stood idle Portland loading, nor while remained in Bend and other Oregon places awaiting proceed Central orders to appellant’s charges truck heads. The were made under freight part: its tariff, reads, hourly rates named in item 35 include the
transportation, loading, unloading, time, stopping in transit, and all other accessorial services in connection with the loaded movement.” Item 35 reads as follows: “Hourly charges Rates —Rates and
transportation of commodities as described Item ** 10 shall asbe follows paid court circuit held that the sums to the appellant waiting periods part for the constituted gross earnings, employed parts its as that term is in the *4 quoted. § pre- 115-517 which we The sole issue by appeal sented this is whether or not the court erred construing applying in so and the statute.
446 dispute. Mr. Babic, from A. is free J.
The evidence operation manager, explained appellant’s in quote happened testimony shall now how it which we waiting kept for Portland trucks were that periods time: extended required they army called for trucks as super- They our loaded the vehicles under them. job large impossible that it was was so
vision. The point going at to the same load all the vehicles to the same trucks as many they required us to have as so time, go any they one needed to to felt were they though point even couldn’t time, the same at hours. first for or 6 or 7 load them convoy they required operation us to of the week Oregon. Oregon, to Portland, Bend, from movement groups They required assemble each of the us to convoy proceed in in Portland of vehicles because it wasn’t discontinued It was later Bend. practical. Oregon, at the vehicles arrived Bend, At dispatch station, station, Central check a central convoyed point that and were at assembled were they group or truck head units units the various army personnel. called were truck Warehouse “Q. What at [*] was & or4, average waiting time of the % terminal 4? army SX; approximately 4 6 hours. “A. It was length the occasion was “Q. What ? time insist- occasioned “A. The army for load- available have vehicles ence though they vehicles load the couldn’t ing, even They to have the they wanted there. when they yard to see them wanted trucks they had the certain would so there loading organize that the so also to trucks, camp loaded would be one items subsistence keep space so as to hours, 6 or 7 5, of 4, within together. less loaded more vehicles
447 “Q. this Now, time of 4 to 6 how much hours, by loading? of that time was consumed
“A. approximately Well, the to 6 hours one loading.” and half to two hours was consumed in explained Mr. Babie that the time Bend at “was incurred because vehicles would move designated very truck head, which truck head often was not departure known but an hour or before two very of the trucks from Bend, often trucks got arrived troops at the truck head before the there who were to unload the vehicles.” Myrin, Mr. superintendent W. S. inwho, 1943, was Oregon the Eastern and Central division of the plaintiff, explained following testimony why in the trucks stood idle in periods: Bend at times for extended
“ long IQ. want to know how a time those trucks you stood dispatch idle at Bend before were able to them to the truck heads. ‘‘ say average A. I would Oh, time was about 6 hours. dispatched “Q. Were these trucks truck they heads in the order in which came into Bend? necessarily. “A. Not By they “Q. dispatched? what method were They dispatched “A. group. were in a In other maybe words, there would be two or four, three, particular trailers, trucks division or or semis, loaded for a
group who would be located at a truck convoy head, and those vehicles would in a move to the truck head. spoke being “Q. You them about assembled place
there some in Bend. place “A. there Yes, was set aside. “ Q. ? Provided for them “A. Provided for them. place?
“Q. Where was that I don’t mean the anything street number or of that but kind, was it? field, it in the where street or was in the or where? The warehouse Occa- in the street. “A. some it was Well, in our ter- down own of them were some sionally of them others were —the and again minal yard, spot, there in that particular down street ended side in the dirt up kind of off were been.” the street would where Bend, waiting periods left the trucks After *6 lack of roads, due to impassable incurred sometimes duty for convoy available army personnel reach the truck should not that trucks request Army’s until darkness. heads facts. statement a sufficient above is
The concerned, are as appears tax with which we The ais quoted, previously of the statute the words from earnings” “gross and is imposed upon tax” “privilege in loading, unloading, from services rendered derived Since delivering freight. up picking transporting, dollar every to the commissioner reported the appellant sums for periods the Army, except paid from received instructions, loading were awaiting its trucks when or not us is whether before the sole question in loading, earned transporting, sums were withheld or delivering cargo. picking up unloading, that a truck which is standing argues The appellant be loaded or the time when it will will awaiting idle movement, is not for its future instructions be given loading unloading in the transportation, engaged such a situation is similar claims that It freight. or a railway a vessel car. demurrage to the or not whether the appellant’s not indicate does record Such demurrage. charges, make tariffs provision are understanding, separate apart to our according for loading, unloading transpor- those made from already provision tation. mentioned the in We appellant’s tariff under collected money respondent to tax, seeks and which says: * * * ** * hourly rates include * * * stopping time and all transit, other acces-
sorial services connection with the loaded move- ment.”
Seemingly provision repels any suggestion appellant charged Army separately could have waiting periods. for the waiting periods described the evidence
apparently demurrage type, not of the but were peculiar due to the nature of the service which the Army wished It rendered. wanted to have trucks special loaded formations and also wanted the proceed patterns vehicles to from Bend which would troop railway conform with the movements. A car, subject demurrage charges, custody inis of the shipper siding; while it appel- stands his but the lant’s vehicles were at all of the with times which we custody are concerned in the appel- immediate *7 periods lant’s In fact, drivers. the which the charge driver Army, was absent no was made to the according Mr. to Babie, whose exact words were: charge included all the time the vehicle Army except
was in the service of the for the time might that the vehicle have been broken down or operator duty taking, the rest.” of the vehicle was off a. always practical drafting It not is in of tax precision every to detail statutes with' item which it is proposed exempt. to tax or Business methods, mercan- terminology accounting practices vary tile in dif- single therefore, term establishments,
ferent no and, phrase may legis- an suffice name item which has lator in mind. business methods are Then, too, generally accordingly precise in a state of flux, language adapted today’s may methods enable those sought escape levy by slightly it to tax is whom changing practices or methods, tariff schedules. their packaging writing ideas, whether in the of a or of a book, statute involves selection of words. If those who later encounter the words know what is writing purpose. Today has it served its intended, the legislation happens that often which concerns busi subject agencies to the control of administrative nesses agency who, is drafted in consultation with through officials years, gained familiarity of the the course usages practices under businesses with supervision. In instances of that lan kind, their say guage a tax of a that of is that statute, statute, acquainted become with business’s of men who have appellant’s from the that idioms. It obvious tariff is engaged transportation in the who business those are “transportation” employ the word in its literal do not signification practical but wherein sense, “waiting meaning loading, its includes within time, unloading, stopping transit, and all other accessorial loaded with the movement.” in connection We services “transportation”, as it the word are satisfied given § appears 115-517 to the definition in the earnings”, practical “gross in the sense is used term employ placing transportation it. In men in meaning appel practical which same word the uses, rule do no violence itself lant we strictly. taxation statutes construes assignment appellant’s first as the It true,
451 opinion error of the the memorandum indicates, judge expressed “waiting circuit court a belief that the part pick-up delivery time is a service.” We opinion unnecessary. believe that that detail of the was waiting periods, part think, we were of the trans- portation appellant service which the rendered Army. They were no different nature than time spent awaiting change light. color a traffic
The decree of circuit court is affirmed. rehearing February 18,
Petition for denied ON PETITION FOE REHEARING
(177P. (2d) 422) petition rehearing for a asserts: “1. That confining the Court erred in not its decision to the error that finding of the lower court in its picking up time delivering, was but, instead upon based thereof, its conclusion theory waiting, transportation, time was point appellant argue has had no chance to before this Court; “2. giving That the Court erred in not strict taxing
construction to a statute but broadened by including definition of the statute ‘transpor- all tation’ accessorial services in connection there- with.” support
The brief filed in of the above contentions begins thus:
“Appellant brought Supreme this case to the Court in the belief appealing that it was from a judgment in a equity law action and not an decree. This belief founded pro- the fact that the ceedings pursuant below filed and tried statutory (Uniform Declaratory Judgments law seq.). 6-601, Act—Sec. O. L. étA., C. Under such *9 we circumstances assumed would appeal * ** this not be a trial de We believe that novo. is a is em- this law (if properly action) Court has to review the decision below powered only issues not try appealed no original jurisdiction ’’ to it. to and Judgments (§6-601 Act Declaratory Our L. Declara- is the Uniform 6-616, O. C. including Á.) § National by Act which was written tory Judgments of on Uniform State Laws. Commissioners Conference form the uses in alternative words The act repeatedly ‘‘ ’ ‘ ’’ ‘ is ’. The former decree appropriate judgment latter law; normally of is in court to proceeding courts. used only in-equity court from which the
The of the circuit final order entitled the circuit was court appealed appellant instituted proceed- complaint a decree. of “Plaintiff, thus: for cause suit commenced ing * * brief, referring *.” Its the defendant against stated: “Consolidated proceedings, the circuit court for a declaratory judgment suit brought thereupon * * * * * of court below this *. a decree From ” last of the brief follow: taken. words appeal that the decision “Wherefore, prays plaintiff-appellant ’’ be reversed. of the lower court decree L. section 15 of the A., being O. C. 6-615, Section Act, says: Uniform so and construed interpreted
“This act-shall to make uniform its general purpose as effectuate it, enact and to har- states which of those the.law monize, Federal with laws so far possible,' subject of judgments declaratory regulations and decrees.” Act which invokes uni- of the Uniform
The section qf frequently is over- judicial interpretation formity. gained through Nothing uniformity legis- looked. is by uniformity judicial it followed lation unless interpretation. Declaratory Judgments, (2d) 238,
From Borchard, quote: nowwe already power granted observed,
“As declaratory strictly judgment the a thorization statutes is more existing power to use an an direction than au- power. J., new As L. Bankes, Guaranty remarked in Trust v. Co. New York Hannay ‘I & cannot had Co., doubt that the Court Chancery (before days 1852) thought of those expedient declaratory judgments mere make *10 right would have claimed and exercised the Again, historically to do so.’ ditionally it is both and tra- power primarily by a exercised courts equity, of and even where exercised law courts largely equitable it in is nature. It is so treated several which have courts, reserved the fullest liberty the moulding decrees to the necessities of regardless prayer, although of occasion, the occasionally only they impose do conditions, as in pure equitable of the case decrees. In truth, the power ought source of the as not to be considered any importance, of other than historical for in principle declaratory generis relief is sui is legal equitable. example, is, as much as It for not subject equity irreparable the to restrictions of injury inadequacy legal remedy alleged or be proved, although equitable defenses, such as may laches and unclean hands, induce a court of its exercise discretion not issue a declara- purely equitable it is an tion. Since not action, escapes equitable pro- some of the technicalities of example, purely equitable, were it cedure. For alleged infringer against patentee of an action invalidity patent for non-infringement declaration required joining have would living as a defendant of an exclusive licensee who, impossible in another district, would been compel; declaratory to serve and but as a action, joinder unnecessary. such was deemed Where for petition some reason the for a declaration is re- garded pure request remedy equitable as a for an persuade in a case other considerations where pending gives oppor- court that a tunity action at full law equitable relief, defenses and full the More doubtful is the may declaration declined.
propriety rather of a dismissal than transfer though at law, calendar where the action considered yet brought. appropriate, more has not been granting construing “In contracts, declarations instruments, wills or other written courts often con- powers the inherent sider themselves endowed with equity. granted is Relief sometimes a court of of and way beyond procedure flexible in a made equity. roughly powers It is true of a court Supreme suggest, asp Ohio, did the Court declaratory judgment adopted at least in equity. part gap In between law and fill the adopted pro- simplify it was however, addition, give possible and to relief both so far cedure cases where available coercive remedies were also per- beyond, equity failed or had not where judicial opportunity for relief. the need ceived guide history to inter- a reliable often But since equitable policy, characteristics pretation special Doubts attention. warrant of the relief *11 including parties, practice, pleading of and matters equit- analogies from of in favor be resolved should proceedings.” able § Declaratory Judgments, the 56, Anderson,
From following is taken: declaratory judgment history aof “When consideration, into and taken
action is looked under whatever it was existed, whether name it quia law, ancient common at the writs one of equity, easy timet this matter becomes rather of and it solution; is submitted that such actions may strictly placed category not be in one other. wanting “However, decisions are not broadly declaratory announce the rule that actions equitable governed by equitable principles, are and occasionally adjudication sporadic be outright, they are
(cid:127)encountered, declares exclusively simply rights occupied by equitable legal actions and may trespass upon of actions not the domain legal them such; as when a that interposed declaratory judgment defense is action, purely equitable it is so that relief will granted; proceed not be but these decisions without taking into account the ancient of character declara- tory they that actions and the fact existed at com- equitable system of mon law before advent jurisprudence. holding declaratory judgment equitable, still hold them to be equitable “There is another proceedings, [*] line or as # partaking cases actions [*] that, while % be nature of some of strictly not the characteristics thereof. On the other it is hand, declaratory properly that held actions are classified as actions at law. To add these various classifi- adjudications holding cations, there are other legal equitable, are neither nor sui but are generis. positions
“It would seem that all are these unsound, and that none of them can be sustained principles. sound is not much It so a matter judgment declaratory of classification action importance, right duty that is of it is. grant declaratory any of the courts to relief in ought granted. action where it to be only position sound can taken with respect partakes to such classification is that legal properties of both actions and suits
456
equity, apply will and that the court the rules with respect seems thereto as nature the case declaratory judgment that at times a demand; may carrying properly legal, be as action classified right jury trial; to a with it the attendant and may correctly designated it as a at other times, equity, injunc- warranting the issuance of an suit extraordinary granting authorizing the and tion, relief
generally. history development “When begin- declaratory rights granting ning is considered, times when the common-law at earliest purpose, later, for that and then were used writs supplanted by the action when these writs quia equity, to the enactment timet down day present is the. statutes, clear that of declaratory judgment equitable; action, legal both position support finds and this ’’ adjudicated cases. modern Jersey construe the Act courts Uniform The New pro equitable rights only applicable and deem equitable purely ceedings See character. it as under Judgments, page Declaratory ed., 2d 241, Borchard, Declaratory Judgments, page But 158. Anderson, analyzed the nature of the other courts proceedings Act announced Uniform authorized excerpts in the those set forth similar to views opinion paragraphs preceding this took from Bor Holly Sugar Corp. Fritzler, v. Anderson; see chard Wyo. Ellis, 307, 221 P. Morris v. Wis. 446, 206; 296 42 App. Wills, 496, 72 921; Lamb v. Ohio 53 N. W. 266 Strype (2d) Lewis, 1004, v. 352 Mo. 530; N. E. Gray (2d) R. v. 99; A. L. 103 Utah 688, 155 Defa, S. W. (2d) R. 251, 155 495; A. L. and Manchester P. 339, 135 (2d) 2 Atl. 136, 207; Id., Vt. 109 Vt. Townshend, 110 v. Indemnity R. 811. A. L. Co. 22, 110 Atl. 65, 192 Pacific v. 107 Fed. McDonald, 446, 31 A. L. R. (2d) 208, (9th says: Circuit), *13 nature of an action for relief declaratory stated in correctly brief. It ‘is appellee’s
neither nor legal equitable, but sui In generis.’ Borchard on Declaratory Judgments, it is p. 120, stated: ‘Declaratory relief is neither strictly equi- nor table although, as will legal, presently be ob- its historical served, sources are almost exclusively equitable’.”
The opinions just cited reflect a that conception declaratory judgment sui generis, but are proceedings main subject rules which govern causes in courts. The fact that equity such proceedings have not been permitted become by shackled outmoded and is due to the inappropriate procedure enlightened view which both the bench and the bar today take of pro- cedural reforms intended to render the courts more useful.
Precedents such as the above, construe statutes are intended to create of uniformity law, are entitled to great To refuse to weight. follow them because of some minor difference of opinion would defeat one of the important purposes such acts; is, gain law. uniformity
We believe that the practice of this state con has deemed stantly declaratory judgment proceedings sui generis, but controlled largely by equity practice. See, for example, Cabell v. City Cottage Grove, 170 130 P. 144 256, 1013, Or. A.L.R. (2d) 286; Central District v. Oregon Irrigation Co., Deschutes 168 Or. 518; and New 124 P. Amsterdam (2d) Casualty 493, v. Company Hyde, P. 229, 34 Or. P. (2d) 930, 35 (2d) 980. Section L. 13-715, A., O. C. says:
“When jurisdiction is, by organic law of this by any statute, this code or other conferred state, carry judicial the means to officer,
on a all court given; also in the exercise of effect are into jurisdiction, proceeding not if the course of be any pointed specifically out this suitable code, may adopted proceeding process or mode may spirit appear most conformable to ’’ of this code. declaratory affinity judgment pro- The close possibly ceedings equity due to the fact that suits, with judgment declaratory inspiration statutes to write possessed by powers the chan- from ancient came in this at that, least, the fact state shown cellor, is accompany petition for common it has become prayer purely relief of a with a declaration injunction. equitable as an In fact, such character, *14 equitable supplementary relief which is sometimes primary purpose engross sought seems generally proceeding. 155 A. L. R. annotation, See 501. setting analysis, forth further we ex
Without declaratory judgment pro press our conclusion although generis, governed by ceedings, largely sui are being practice. equity our belief, Such that, follows declaratory appeal from a this court decree, is not findings fact entered in the circuit bound findings present no of fact instance, In the court. language court. The the circuit we entered petition rehearing quoted has refer from the findings, opinion but to memorandum ence, not to judge filed. trial rehearing accompanying petition for a and its careful attention. received We remain brief opinion announced we in this with the case. satisfied rehearing petition for a is denied.