240 P. 26 | Cal. | 1925
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *232 Review to annul a decision and order of the respondent Commission commanding petitioners to desist from the transportation of property by autotruck over a regular route and between fixed termini upon the public highways of the state for compensation unless and until they shall obtain a certificate of public convenience and necessity so to do from the respondent Commission. Petitioners were engaged in the transportation of citrus fruits belonging to the Redlands Orange Growers Association, a corporation, between the city of Redlands and Los Angeles harbor in this state, pursuant to a contract with said association. Petitioners were brought regularly before the Commission to answer to a complaint of a competing carrier, who was *233 engaged in the transportation of property between those points as a common carrier under a certificate of public convenience and necessity issued by the Commission, and who alleged that the business of transportation being carried on by petitioners under their contract with the Redlands Orange Growers Association, without the issuance of a certificate of public convenience and necessity, was in violation of the Auto Stage and Truck Transportation Act (Stats. 1917, p. 330), as amended (Stats. 1919, p. 457). There is no dispute as to any of the facts herein. All of the essential facts are conceded to be correctly set forth in the allegations of the petition and the exhibits attached thereto. Petitioners had entered into a purported contract of lease with the Redlands Orange Growers Association whereby petitioners purported to lease to the association certain autotrucks owned by petitioners to be used by the association in the transportation of its fruit from Redlands to Los Angeles harbor, but which trucks were to be operated in such transportation by petitioners. The Commission, after an analysis of the provisions of the purported lease, found and determined, correctly as we think, that the same did not constitute a lease and that the real contract between the parties was a contract for transportation whereby petitioners undertook and agreed to transport the fruit of the association between Redlands and Los Angeles harbor during the period of time and for the compensation therein specified. The correctness of this conclusion of the respondent Commission is not seriously questioned by petitioners herein, and the question is, therefore, whether one who is engaged as a business in the transportation of property by autotruck for compensation over the public highways of the state between fixed termini and over a regular route, but operating solely under a private contract, is subject to the provisions of the Auto Stage and Truck Transportation Act,supra, as amended. Section 1 of the act defines the term "transportation company" as used therein to include every person "operating . . . any automobile, jitney bus, auto truck, stage or auto stage used in the business of transportation of persons or property, or as a common carrier, for compensation over any public highway in this state between fixed termini or over a regular route, . . ." (with certain exceptions not pertinent herein). The italicized words "business of" and "or" were added to *234 the section by the amendment of 1919 (Stats. 1919, p. 458, sec. 2). Petitioners would have us in construing this section read the phrase "or as a common carrier" as if it were "and as a common carrier," substituting the conjunctive "and" in place of the disjunctive "or," and thus conclude that the act as amended is applicable only to those who are engaged in such business of transportation as common carriers. We are unable to adopt this conclusion. To so hold would be to say, in effect, that the legislature accomplished nothing and intended nothing by this amendment. The definition of "transportation companies" contained in this section of the act as originally enacted plainly and unmistakably limited the same to common carriers. If any meaning or purpose whatsoever is to be ascribed to the amendment of 1919, it can be only the meaning and purpose of extending the act to make it applicable also to private carriers of the sort there described.
The question then arises whether under the provisions of the state and federal constitution the act is valid in its application to such private carriers. Various points relating to this question are ably discussed by counsel and by amici curiae
who have filed briefs herein. It is contended in behalf of petitioners that this act in its application to private carriers has the effect of transforming them into public carriers by legislative fiat. Counsel for respondents vigorously deny that such is the effect, but it cannot be denied that the provisions of the act as applied to private carriers do closely approximate this result. Section 2 provides that no transportation company may operate "except in accordance with the provisions of this act." Section 3 forbids such operation unless a permit has first been secured as therein provided, and requires the applicant for such permit to specify the highways and the route over which the applicant intends to operate, and furnish description of each vehicle which applicant intends to use, including the seating capacity thereof if for passenger traffic, or the tonnage if for freight traffic, together with a schedule or tariff showing the passenger fares or freight rates to be charged. It provides that such permit may be issued or refused, or issued upon such terms and conditions as in the judgment of the Commission the public convenience and necessity may require. It provides further that no permit so issued may be assigned or *235
transferred without the consent of the granting authority. Section 4 empowers the Railroad Commission to supervise and regulate every such transportation company, to fix its rates, fares, charges, classifications, rules, and regulations, to regulate its accounts, service, and safety of operations, to require the filing of annual and other reports, and to supervise and regulate transportation companies "in all other matters affecting the relationship between such companies and the traveling and shipping public." Section 5 forbids operation even under a franchise or permit granted by any incorporated city or town, city and county, or county, without first having obtained from the Railroad Commission a certificate declaring that public convenience and necessity require the exercise of such right or privilege, and provides further that the Commission may attach to the exercise of the rights granted by such certificate such terms and conditions as in its judgment the public convenience and necessity may require. Section 6 forbids the issuance of any stock, stock certificate, or bond by such transportation company except pursuant to an order first secured from the Railroad Commission. Section 7 provides that as to applications and complaints and procedure subsequent thereto all transportation companies will be subject to regulation by the Commission "under the conditions and subject to the limitations and with the effect specified in the public utilities act." Section 8 makes the violation of any of the provisions of the act or of any order, decision, rule, regulation, or direction of the Commission a misdemeanor and prescribes the punishment therefor. [2]
Furthermore, if the legislature is competent to thus define "transportation companies" to include private carriers, it follows that they cannot raise any charge or rate without first securing the consent of the Railroad Commission (Const., art XII, sec. 20), cannot accord to one person any rate or facility different from that accorded to any other person (Const., art. XII, sec. 21), and cannot render a transportation service for any rate or charge less than that named in the tariff rates established by the Commission (Const., art XII, sec. 22). A carrier who files with the Railroad Commission a schedule of his routes, tariffs, and charges, who is under compulsion to render transportation service of the kind, character, and quality prescribed by the Commission, who *236
is disabled to enter into a contract for the rendition of transportation service of any kind, quality, or character different from that prescribed, or for a rate of compensation either greater or less than the prescribed rate, is at least subjected to the disabilities and limitations which circumscribe a public or common carrier (10 C.J. 37 et seq.). It is conceded that the state has no power by mere legislative fiat, or even by constitutional enactment, to transmute a private utility into a public utility, or a private carrier into a public carrier (Producers Transp. Co. v. Railroad Com.,
"The right of a citizen to travel upon the highway and transport his property thereon in the ordinary course of life and business differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain, in the running of a stage coach or omnibus. The former is the usual and ordinary right of a citizen, a common right, a right common to all; while the latter is special, unusual and extraordinary. As to the former, the extent of legislative power is that of regulation; but as to the latter its power is broader; the right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature. This distinction, elementary and fundamental in character, is recognized by all the authorities."
The argument is that the privilege of using the public highways as a place for the transaction of private business *237
is not a vested right but a privilege which the state may grant or withhold at its pleasure; that having the right to withhold such privilege it may grant the same upon such terms and conditions as it may see fit to impose; that it may say in effect to the applicant for such privilege, "I will grant you the privilege of using the public highways for private gain in the transaction of your business upon the condition that you in turn shall dedicate the property used by you in such business to the public use of public transportation." There is much force in this contention. It has been repeatedly decided that the right of a common carrier to use the public highways for the conduct of his business as such is not a vested or natural right, but is a mere privilege or license which the legislature may grant or withhold in its discretion, or which it may grant upon such conditions as it may see fit to impose (Ex parte Lee,
"The streets of the cities and towns in Louisiana being among the things that are `public' and `for the common use,' no individual can have a property right in such use for the purposes of his private business, unless, speaking generally, that business being in the nature of a public service or convenience, such as would authorize the grant, the right has been granted by the state, which alone has the power to make or authorize it, or, by the particular city or town, acting under the authority of the state, and in such case the right can be exercised only in accordance with the conditions of the grant; that is to say, an individual seeking, but not possessing, a right of that kind, may accept the grant, with the conditions imposed by the offer, in which case he becomes bound by the conditions, or he may refuse to accept the conditions, in which case there is no grant, and without the grant so offered, or some other, from the authority competent to make it, he can never acquire the right to make use of a street as his place of business."
Aside from the foregoing considerations it would seem that the fact that petitioners' business is of necessity carried on almost wholly upon the public highways would of itself cause such business to be so affected with a public interest as to subject it to governmental regulation, but as this point has not been discussed by counsel, we do not pursue it further.
It is contended that the constitution does not and the legislature cannot confer upon the Railroad Commission jurisdiction or authority to supervise or regulate a private act of the nature involved herein or the business of a private carrier. The constitution provides (art. XII, sec. 22): "Said commission shall have the power to establish rates of charges for the transportation of passengers and freight *241
by railroads and other transportation companies." In the case ofWestern Association of Short Line Railroads v. Railroad Com.,
The fact that the Auto Stage and Truck Transportation Act, in section 7 thereof, adopts by reference the procedural provisions of the Public Utilities Act (Stats. 1915, p. 115), does not have the effect of rendering the former act inapplicable to private carriers. The fact, for example, that section
We agree with the amici curiae for the petitioners that the Auto Stage and Truck Transportation Act does not purport to be and is not in fact a regulation of the use of the highways (Buck v. Kuykendall,
The demurrer to the petition is sustained and the order to show cause is discharged.
Richards, J., Lawlor, J., Seawell J., Waste, J., Knight, J.,pro tem., and Lennon, J., concurred.
Rehearing denied.
Shenk, J., dissented.