123 A. 385 | Vt. | 1924
The petitioner, John B. James of Bennington, on the 22d day of August, 1923, brought his petition to the Public Service Commission, setting forth, among other things, that he is the owner of three motor busses therein described, which he desires to operate and is operating over the streets and highways between the Village of Bennington and the Village of North Bennington; that the nature and character of the service to be rendered by him is receiving, transporting, and discharging passengers for hire; that the petitioner is furnishing such service between the points named, and has so done for more than eighteen months (then) last past. The prayer of the petition is, that the Commission, in accordance with the provisions of Act No. 91 of the Laws of 1923, make such regulations as it deems requisite, if any, for the safety and protection of the public, and as to bonds or other security for indemnifying the public.
Section 1 of the Act defines a motor bus, and no question is made but that the petitioner's vehicles, operated by him, fall within the definition thus given. Section 2 declares every person or corporation engaged in the business of operating a motor bus, as defined in section 1, to be a common carrier (with an exception not material to mention further). Section 3, after stating its subject-matter as "Same, regulations," exclusively provides: "Such common carriers shall furnish such motor busses and operate the same in such manner, as to afford safety and protection to their passengers and to the public." Section 4, after stating its subject-matter as "Supervision of Public Service Commission," provides: "The Public Service Commission shall have general supervision and jurisdiction of such common carriers, and the provisions of Chapter 215 of the General Laws shall, so far as may be, apply thereto." Section 5, provides that the *365 Public Service Commission shall have jurisdiction to require of such common carrier, reasonable indemnity for injuries to the person or property of passengers caused by unlawful action or neglect of such carrier. And section 6, provides a penalty for a violation of law, etc.
Subsequent to the time when the Act of 1923 took effect, the Commission issued for guidance to persons desiring to operate motor busses under the provisions of that Act, General Order No. 7, which provides as follows: "If, upon hearing on such petition, it is found that the granting thereof will promote the general good of the State, the Commission shall determine and fix the amount and form of indemnity that shall be furnished by the petitioner in accordance with the provisions of section 5, of said Act; and upon the filing with the Clerk of said Commission of the bond or other form of indemnity as fixed, approved by said Commission, the Clerk of said Commission shall issue a permit to the petitioner to operate such busses over such routes as are described in such permit. Said permit shall be good from the date of its issue to and including the 31st day of December next following unless sooner revoked and not after the last named date."
Before introducing any evidence, the petitioner filed with the Commission what he called a "plea to jurisdiction," a copy of which is made a part of the report. While such formal pleading is neither required nor appropriate in such proceedings, the "plea" filed was very properly treated by the Commission as a statement of the petitioner's claim that the Commission had not the power to restrict competition or deny his right to operate his motor busses as he was doing and intended to continue to do, he being willing to conform to all reasonable operating regulations, and furnish the requisite indemnity. The petitioner introduced evidence from which the Commission finds that he has three properly-equipped motor busses, each with a seating capacity of twelve people, which he desires to use in the operation of a motor bus line between Bennington and North Bennington (in carrying passengers for hire), and which he has been so operating since February 1, 1922, and that he is ready and willing to comply with all reasonable regulations which the Commission may make concerning such operation, and to furnish the indemnity to secure the persons and property of passengers against *366 injuries. But the petitioner introduced no evidence as to the manner in which or the extent to which, the public in the vicinity of Bennington and North Bennington is at present being served with facilities for the transportation of passengers and their property, nor upon the question of whether there is a public demand for the motor bus service which the petitioner desires to engage in. At the close of the petitioner's evidence his counsel stated that he did not intend any evidence which he had introduced to apply on these questions, and the ruling made as hereinafter stated was with the understanding that upon these issues no evidence had been introduced.
The Commissioners state in their report that it seems to them that the Legislature passed Act No. 91 under the belief that the time had come to determine in a formal way to what extent our highways should be used by business similar to that under consideration, and to limit such use to the public need; and that following this interpretation of the enactment, and for lack of any evidence as to the manner in which and the extent to which the traveling public is now served with means of conveyance over the route in question, or as to the public demand for such service, or tending to show that the proposed service would promote the general good of the State, the petition is dismissed and exception saved.
Stated in concrete form, the sole question then is: Had the Public Service Commission, by virtue of its power of general supervision and jurisdiction of such common carriers, under section 4 of said Act, including the provisions of Chapter 215 of the General Laws, applicable thereto, authority to prohibit the petitioner's continuation in such public employment over the route in question, in which employment he was engaged continuously for more than a year before Act No. 91 was passed, and thenceforth to the time of the hearing on the petition, there being no evidence introduced by him upon the question of public convenience or necessity, he being ready and willing to comply with all reasonable regulations within the power of the Commission to prescribe?
While at common law a carrier of passengers is not, technically speaking, a common carrier, when the petitioner engaged in the business of operating motor busses and therein transporting passengers for hire between the two villages named, *367
he held himself out as a common carrier of passengers, thereby devoting his vehicles to a public use, and by the statute in question was declared to be a common carrier; and being such carrier he was subject to reasonable regulations under the police power of the State. The fact that he was not operating under authority of a charter from the State, but by individual enterprise, makes no difference in this respect. State v.Edwards,
From the foregoing authorities it is certain that in operating his motor busses as and for the purpose stated above, before and down to the time the Commission made the order in question, the petitioner was exercising a lawful right, in a lawful manner.
It is asserted in petitioner's brief by way of argument that under the Constitution and laws as they now exist, it is doubtful if the Legislature itself could do what the Commission has undertaken to do, namely, prohibit him from continuing in such public service under regulations lawfully prescribed. But we give the constitutional doubt thus expressed no heed, for the question before us is not so circumstanced as to necessitate an inquiry concerning what the Legislature might do in the respect named, but rather what it did do by way of conferring power upon the Public Service Commission, and this question must be determined according as the power is expressly granted by the statute under consideration, or necessarily implied *368
as essential to the proper exercise of the power expressly granted. Coll. Pub. Ser. Com., §§ 171, 172; Bosquet v. Howe ScaleCo.,
The authority of "general supervision and jurisdiction of such common carriers," placed upon the Commission by section 4, is not regulative in character. The word "supervision," as defined in Webster's Int. Dict., means: "Act of overseeing; inspection; superintendence; oversight." In Nebraska, the provision giving to the board of transportation, "general supervision of all railroads operated by steam in the state," was under consideration by the highest court in that state, in State v.F.E. M.V.R. Co.,
The like coupling in section 4 of the provisions of Chapter 215, so far as they "apply thereto," shows that such provisions are to be understood in the same sense. The words "apply thereto" have reference to the "general supervision" provided for in that section, and to nothing else.
It results from what we have said that Act No. 91, Laws of 1923, including Chapter 215 of the General Laws so far as applicable thereto, does not make the right of such common carriers to operate motor busses in the public service, to depend upon public convenience and necessity, or either; and the order of the Commission dismissing the petition, for want of an affirmative showing of this character, was in excess of its authority and cannot be upheld. The statement of the Interstate Commerce Commission in an opinion written by Judge Cooley (In reLouisville Nashville R.R. Co., 1 Inters. Com. Rep. 31, 57), concerning the effect of the Act to Regulate Commerce, on common carriers, and quoted with approval by the Federal Supreme Court in the case of Interstate Commerce Commission v. Alabama M. Ry.Co.,
The order of the Public Service Commission is reversed, and thecause remanded for such further proceedings as, under the law,the case requires.