*1 important of this of much or destruction
evidence, at the officer door and an activity by nothing prevent
do room.
already in the considerations, to- these my opinion, alleged that the assail- the fact
gether with all threat to remove specific
ant had made a incident, provided sufficient
evidence of the evi-
danger of removal or destruction the warrantless intrusion. justify
dence to conclusion, that a contrary majority’s believe, is, entirely required,
warrant was the circumstances.
unreasonable of the situation.
simply ignores the realities
KODIAK WESTERN ALASKA
AIRLINES, INC., Appellant SERVICE, FLYING
BOB HARRIS
INC., Appellee. SERVICE, FLYING
BOB HARRIS
INC., Appellant, AIR-
KODIAK WESTERN ALASKA
LINES, INC., Transporta- and Alaska Commission, Appellee.
tion 3641, 3759.
Nos.
Supreme of Alaska. Court 30, 1979.
March *2 Stern, Jr., Anchorage,
John M. for Kod- iak Western. Patterson,
John B. Anchorage, for Bob Harris. Hebbel,
Douglas Gen., A. Atty. Asst. An- Gross, chorage, Gen., Atty. Avrum M. Ju- neau, Transp. for Alaska Commission. BOOCHEVER, J., Before C. and RABI- NOWITZ, CONNOR, BURKE and MAT- THEWS, JJ.
OPINION CONNOR, Justice. court’s concerns the Transportation
reversal of an Alaska Com- ruling Flying mission Service had violated the Air charging passenger individual fares while service. Airlines, Kodiak Western Alaska Inc. (hereinafter Western”) complained “Kodiak Transportation Alaska alleging Service, Flying that Bob Harris (hereinafter “Harris”) Inc. violating Act, sections Air Alaska Commerce 02.05. The Commission found that Har- 02.05.050(d)(3)1 by: (1) ris had violated AS carrying passengers on individual fare “regular” basis between points served on basis, Dillingham specifically Togiak, (2) passenger individual fares charged by Western, less than those the scheduled air carrier between those points. gross revenue Commission found “illegaP’operations
obtained from these part: 1. AS 02.05.050 states in relevant (3) may “(d) operators. commission, passenger Air individual fares per pound cargo regulation, rates on bush routes or establish more than one sub- points irregular basis; operator classification served him an and shall however, establish the extent to which individual fare and subclassifica- regulated per pound cargo provisions tion shall be less under rate than that chapter. of this A authorized contained in the tariff chapter engage points being this air taxi in air commerce as an scheduled carrier between served ” the carrier . . . Appellant Kodiak Western maintains $25,600 realized from approximately and, pattern consistent separate operation operated because fre- days of Tog- nature of quent flights and continuous substantial violations, service. the maximum iak which constituted deemed appropriate. per day on this matter includes a list- The evidence $150 $19,200 levied Thereupon ing by the Commission all Harris’ date *3 $10,000 Harris, against suspending 1, 1975, period points January for the these dismissed, provided year, then to be listing 1975. shows through July The practices violative and that Harris cease its the six one-half month during and no further violations. commit complaint, Harris period covered trips Dillingham and made 483 found the appeal, On Togiak, on 128 out of the 196 operating support evidence insufficient to flights ranged days. frequency finding provided mission’s that Harris had month, many with per from 33 to 115 ’as Although the court “regular” service. periods of day (May eleven and on one uphold to found substantial evidence days up eight to consecutive violation, finding of tariff it concluded a (March 9-16). penalization “fundamentally The case was remanded to the unfair.” At Western’s chief hearing Kodiak and entry Commission for new order Dillingham pilot that in the course testified penalty. vacation Dillingham ordinary of his affairs at airport operated appealed. he noticed Kodiak As Western regular morning flight between Dill- daily costs prevailing party, Harris was awarded against Togiak, he did not observe ingham Western with Commis- and but liability. flight pattern. at- being exempted sion from No a consistent afternoon contradictory testimony, president were and Harris has Harris’ torney’s fees awarded on cross-appealed flight that issue.2 9:00 a. m. operating denied ground and that he never leaves the stated per The Alaska Air Commerce Act freight to be hauled or a unless- there mits an air taxi to individu go pick up personal “request to either traf- al passenger points fares “on bush routes or Regarding point or fic take traffic.” irregular served on basis.” AS him an go argues Harris that must whenever controversy in in 02.05.150 request there ais because AS stant case is whether the service between “upon rea- provide that it service mandates provided by Togiak and request.” sonable “irregular.” regula or No meaning Although tions it is clear that Harris made clarifying trips Dillingham and promulgated. in the statute been numerous establish, just Transportation (3)to is in- observe and enforce The Alaska rates, cross-ap- only appellee joint in volved peal as an Harris’ and reasonable individual and attorney’s fares, just charges, fees. and reasonable rules, classifications, regulations, prac- part: relating 3. AS 02.05.150states in relevant to air commerce. tices Service, (b) carrier (a) Discrimination. No certificated “Rates and Duties of certificated 50(b) exempt chap- Every every or carrier under § carriers. carrier certificated carrier and make, give, exempt 50(b) chapter or ter or cause an undue § following advantage preference has the duties: unreasonable particular person, port, or to commerce, (1) locality, provide descrip- air authorized or certificate, request upon person, subject particular reasonable tion of traffic or provide through in port, locality, any and air commerce reasonable service description or of traffic connection with other carri- unjust discrimination or an undue or unrea- railroad, ers or with tor mo- common carriers prejudice disadvantage." sonable vehicle, water; express (2) provide adequate and reasonable service, facilities, equipment, connec- commerce; tion with air Togiak, we are not vidual convinced that fares are allowable hourly, daily, pattern “regu- taxi’s rate cannot weekly be “less than that con- lar” tained tariff of a service was established. scheduled carrier.” It is clear from the record that Additionally, given consideration must be However, provision. Harris violated this integral part and essential that air the question whether remains Harris should play services rural Alaskan life. Air fined for its filed tariff rate. provide only taxis often means of trans- Although 02.05.050(d)(3) Harris violated AS portation between isolated communities and by using Western’s, a fare less than Kodiak villages. allowing Therefore the limitation properly Harris’ tariff had been filed and per passenger only fares bush routes or Commission, by the accepted and would points irregularly4 served must read to- otherwise have been the “legal” rafe which gether provide the mandate service Harris was then charge. authorized to request.5 reasonable It is clear that *4 an air operating “upon taxi re- reasonable Kodiak acceptance Western contends that quest” frequency cannot control the of its of a equivalent filed tariff is not the specific points. approval and that a filed tariff is not neces- sarily argues lawful. it that was Harris’ The Commission determined that duty, operator, as an taxi air to ascertain “regular,” Harris conducting was not “casu scheduled carrier’s tariff rate al,” operations and proper to then file a tariff. It also Togiak in violation of AS maintains that assessment of Since we find that the Commission’s deci penalty against proper, Harris is a albeit sion was based on evidence which shows an indirect, exercise of the Commission’s en- “irregular” pattern of “service on reasona responsibility. Thus, forcement request,” agree ble we cannot with con position Western’s is violated clusion. superior court was correct penalized. Act and should be holding that the evidence was insufficient support findings Commission’s argues that Commission is in that, therefore, fact7 and the Commission’s position best to determine whether the legal upheld.8 conclusions could lawful, tariffs filed are that Air Com- The second by issue raised requires per- merce Act the Commission to concerns Harris’ tariff violation. AS 02.05.- form that duty, the Commission’s 050(d)(3) provides part acquiescence that where indi- exonerates violation. 02.05.050(d)(3), supra 4. See use AS note 1. 7. We the “reasonable basis” standard of questions agency expertise involving review for 02.05.150, supra 5. See AS note 3. policy or fundamental considerations. Under given this standard deference will be agency’s 6. Both the Commission and Kodiak Western long so as it determination is reasona repeatedly contended that ble, supported by the evidence in the record as .clearly interpreted as “casual” Southeast whole, and there is no abuse of discretion. Inc., Skyways, 73-320-AT/C, ATC Docket No. Revenue, Dep’t 21, Union Oil P.2d Co. 74-362, 9, July 16, 1964, Order No. at dated (Alaska 1977); Corp. Mobil v. Local Oil where the ATC said: Comm., (Alaska Boundary 518 P.2d 97-8 “Also we note that the Air 1974); Kelly, Swindel 499 P.2d 298-99 amended, authorizes air scheduled (Alaska Zamarello, 1972); Kelly v. 486 P.2d basis, operate carriers on a aircraft the instant 916-17 case public whereby available for use agen superior we that the transportation remuneration collected for cy’s supported by the evi decision passenger shipper each portion is based on presented. dence capacity of the of the aircraft utilized shipper said while the collec- insufficiency 8. Because find the of the evi we tion of revenue this manner dispositive appellee’s dence do not reach we operators specifically opera- is restricted to vagueness. claim of unconstitutional type tions of this casual basis conducted on a only (cf. 02.05.050(d)(3)).” [Emphasis added.] unlawful, accepted tariff was Harris also insists that relief allowed penalize it prospective only, and that is whether the can should filing it it ob- penalized charges should not be carrier for collected serving ques- a tariff which contained fares less were in was notified that its tariffs Western’s, because no reasona- than Kodiak can tion. We think not. The Commission intentionally file a tariff statutory ble no prospectively, act but we find non-compli- whereby compliance or impose either authority for the Commission violate the law. ance made him filed penalty as to tariffs which have been accepted, and as to which the carrier statutes do not state applicable has not received its tariff is notice happen in a situation expressly what should questionable. legally considered This as- 02.05.140(c) does state: of this kind. AS sumes, course, there is no evidence “Rejection of tariffs. The commission of bad faith or intentional misconduct on is may reject any tariff which not consist- part persuaded of the carrier. We are regulations section and the ent that the court did not err in vacat- rejected so is of the commission. A tariff ing for the tariff violation.9 void.” Prior to the instant action Harris had provision place upon does not notification that the tariff was violative of duty mission an affirmative to review and the act. Nor was a “cease and desist” order disapprove improper. tariffs which are But issued. Under these circumstances we certainly empowered to do so. More- penalty imposed convinced that the severe *5 over, 02.05.150(c) states: by the Commission should not be reinstated. “If, opportunity after notice for hearing, upon complaint or its own cross-appealed has from the initiative, opin- the is of the commission superior attorney’s court’s of fees. denial any ion that . . . rate is ... important It is an to observe that this was unreasonable, unjust- unjust or will be or appeal superior to the court from the deter ly discriminatory, unduly preferential or agency. mination of an administrative unduly prejudicial, the commission shall brought pursuant Appellate to Thus was rate, prescribe determine and the lawful brought Rule an'd it was not an action fare or which the carrier appeal under the Rules. In such an Civil demand, thereafter charge, collect or re- governs we believe that Civil Rule which ” ceive . . . cases, attorney’s applica fees in civil has no Where, here, which, analogy, as there is no evidence tion. The by rule is most 29(d).10 that the carrier knew that its nearly applicable Appellate filed and is Rule express appellant opinion peti- 9. We the con- costs shall be allowed the or on collateral tariff, sequences having improper tioner, including preparation filed an i. the costs of e., might briefs, on the of what liabilities reproduction the record and of the by having arise to others reason of filed an memoranda, petitions and unless otherwise improper tariff. by ordered the court. (d) Attorney's al- Fees. Where costs are Appellate Rule 29 states in full: court, attorney’s lowed in also fees Rule 29. Costs. by determined allowed in an amount to be (a) Dismissal or Denial. If an is the appeal determines that an court. If the court court, petition dismissed or costs shall not be respondent, denied cross-appeal is frivolous or that it or appellee or allowed to the brought simply purposes has been lay, for of de- unless otherwise ordered the attorney’s may be actual fees awarded court. appellee cross-appellee. the or (b) Judgment. Affirmance of In cases all (e) Procedure Where Allowed. Where judgment of affirmance of a decision of the allowed to the or order court, costs allowed this the clerk shall court, superior costs shall be body insert the amount in the thereof appellee respondent unless process mandate or other sent to the court otherwise ordered the court. below, and annex to the same the bill (c) Judgment Reversal of Order. taxed in items detail. any judg- cases of reversal ment, this court of court, superior order or decision of the inquiry. order of rule It first Under that the court has discretion to concludes that attorney’s award or not to award them. fees activity Harris’ not fall within the does e., (i. terms has of the statute that he this case that Our review of reveals service). provided “regular” In Footnote 8 correctly superior employed the court its majority then concludes (Page awarding attorney in not fees to discretion vagueness that issue need not be any party Harris. It cannot be said that non-sequitur. reached. is aIf stat- appeal emerged victory, with a clear here, operative ute’s “regular” and even in such an instance there would be term — —is challenged being vague, the term must no need award as a matter of course. fees first be defined It did can face the follows refusing err in an award to Harris. issue of whether or not evidence is bring party’s insufficient conduct with- AFFIRMED. in the operation of the statute. BOOCHEVER, Justice, concurring Chief I pass would not issue of whether partially dissenting. or not providing “regular” Harris was serv- majority’s While I treat- ices. Depending “regu- on the definition of fees, attorney’s ment of issue dis- services, lar” “irregular” ques- a close sent majority from remainder of the presented by tion the facts of this opinion. majority’s I differ reach- case. The failed to define ing provid- issue whether Harris was serv- terms ing “regular” me service. seems to ices; and, my opinion, in the absence of in dealing with the constitutional void for adequately informing definitions more statute, vagueness challenge the ma- operators require- and others of the jority opinion places the cart before the ments, statute void vagueness.1 horse. party challenges When a a statute I also differ from the decision court’s being unconstitutionally vague, it must pertaining first be examined “on face.” United undisputed unlawful tariff. It was States Dairy Corp., v. National Products 02.05.050(d)(3)by charg- Harris violated AS *6 29, 32, 594, 597, 372 U.S. 83 9 S.Ct. L.Ed.2d ing a fare lower than Kodiak Western. Un- 561, (1963). Although 565 appli- historical 02.05.231, der may levy AS the Commission may cation of the statute be examined in a civil penalty upon a a person who violates vagueness id., connection with the inquiry, provision Chapter Normally, of 5.2 a a mens statute must first the chal- survive facial required rea is not the of lenge for violation a proceeds before the court to examine specified particular regulatory provision whether the such as those party conduct of the before the court falls within or without the Air of 1960 Alaska opinion statute. majority reverses the (Chapter 5).3 provides 02.05.230 AS Grayned City Rockford, 104, alty v. of U.S. shall made written 408 order of the 1. 108, 2294, 2298, 222, 92 S.Ct. 33 227 L.Ed.2d commission. (1972); Connally Co., v. General Constr. 269 Perkins, (2d 3.R. Criminal Law 785 ed. 391, 385, 126, 127, 322, U.S. 46 L.Ed. S.Ct. 70 recognized Such Alaska offenses have been (1926). State, 328 See v. P.2d 7 Stock 526 “public label of offenses. welfare” (Alaska 1974); City Anchorage, v. Marks of State, Speidel See P.2d (Alaska 1972). 500 P.2d where court stated: Although objectively an act have been specifies: 2. AS 02.05.231 wrongful, will of the doer of the mind and penalties Civil violation. for The commis- act have been In such a case innocent. may, opportunity sion after notice for a crime, person punished a cannot be for levy hearing, a civil of more not than “public unless it is one welfare” such as $150 for each offense a who offense, discussed, type of we have which abets, procures, aids, violates who penalties relatively where small provision violation an air of carrier of great damage to an of- conviction does no chapter, order, decision, or an rule or reputation. fender’s regulation levy pen- of the commission. A of BURKE, Justice, concurring. Act violating the Air Commerce knowingly penalty provi- civil misdemeanor. The is a colleague, Boo- Like Justice my esteemed 02.05.231, requirement sion, contains chever, I the statute unconstitution- think of the knowledge, proof violator’s is, therefore, ally vague that it unneces- not normally mind should be neces- state of sary pass the issue this court penalty.4 sary impose a civil whether there was sufficient evidence Har- finding that support the Commission's Where, however, tariff has been filed “regular” service. ris was that, Commission, agree I normal- with the Otherwise, majority opin- I concur knowledge have the carrier ly, if does ion. constituting a violation of the facts statute, penalize should not the Commission charges carrier is
it for collected provision is invalid.
notified its tariff think, however, fact
I know- presented to whether Harris than charged fare
ingly a lower in violation of AS
Western statute, If he violated the knowingly LOVELESS, Appellant, David Edward appropriate impose could Commission penalty. that a factual issue I believe Alaska, Appellee. STATE of presented under which whether
should ascertained No. 3320. knowing there was violation the statu- Supreme Court Alaska. finding tory provision. was made No such community In a small Commission. March Dillingham, certainly there would the basis an inference that an know the tariff of his I competitor. would remand
mission on this issue. pertaining have one further comment
I majority I opinion. importance
statement as to the think, many of Alaska.
service sectors
however, that in- countervailing there are *7 pertaining to the maintenance of
terests
certificated carriers serv- required
ices. These carriers are to service regardless routes at times specified
their they paying
whether or not loads. furnishing
There would be no reason carriers
such services if are sub- scheduled
ject competition unsche- unlimited An operators.
duled incentive type
to be of service fur- furnished for
nished
carriers.
scheduled
Dotterweich,
quirement of criminal intent
be inferred.
4. See United
U.S.
States v.
320
States,
(1943).
U.S.
S.Ct.