*1 Procedure, to that setting 67(d) is similar before us of Civil (e) Union rules and un- Union, brought by constitutionally deny a suit presently. equal non-residents corporation by making was dismissed under of the laws excep- an California 67(d). only give to set that dis- tion for residents who cannot A motion aside rule review, security.2 ordered this court was denied. On missal stated: The appellant post was able to bond and “Nor, an of discretion do we find abuse was not discriminated against by Rules setting judge the trial in not aside by 67(d) (e) and of the Rules of Civil Procedure 67(d), court, ‘shall dismissal. he position so is in no to raise this issue. the action dismissed without notice’ order Flynn Johnson, Ariz.App. fails to act within the plaintiff where the did plaintiff The reason time allowed. Therefore the order and security for costs was that the not file the trial court denying appellant’s Motion to person corporation in the who could only Set Aside Order of Dismissal and Reinstate expenditure could not be authorize Litigation is affirmed. attorney Plaintiff’s admits re- reached. forwarding ceiving plain- notice and it to CAMERON, J., STRUCKMEYER, C. V. to file the tiff. The time within which J., HAYS, J., and C. and HENRY S. STE- security would seem reasonable under the VENS, Appeals, Judge, Retired, Court of twenty days elapsed more than and concur. the time the order was entered until J., HOLOHAN, Note: participate did not the action was dismissed. Plaintiff did in the determination of this matter. HEN- not make his motion to set aside the order STEVENS, RY Appeals, Judge, S. Court of until March 1962. We do of dismissal Retired, participate was called to plaintiff’s neglect not think excusable disposition of this matter. circumstances, and find no under 36-37,
abuse of discretion.” 100 Ariz. at
Only reply appellant in his brief the reasonableness of the time allowed the trial court for remittance of the Granted, days three is a short security. SECURITY, INC., PUROLATOR a Texas time, say cannot it was unreasona- but we Corporation, Appellant, bly considering appellee’s motion short 15, 1974, filed on October security Philip THORNEYCROFT, Acting Superin days the trial court issued six before tendent, Division, Depart when the mo- Motor Vehicle Appellant had notice order. 67(d) ap- ment of and the Arizo that rule entitled tion was made Commission, Appellees. na Appellant an order. was not pellee to such of time in an unreasonable amount given No. 12664. of the court. respond to the order which Arizona, Supreme Court of defends his appellant We note that In Banc. money ordered on the to remit failure Sept. 1977. indigency. This de alleged of his basis fense, was not raised to the trial
court, argument, underlying to his relates on, Rules that 16 A.R.S.
discussed further affidavit, security; proof; objection “67(e) Inability give ob- made but if thereto is defendant, plaintiff plaintiff is a made jection If shall sub- examination. and, designated by five within mit himself to the court at a time resident of the state bona fide court, order, proof orally days of his when he shall be examined makes strict after the give inability security.” security, give inability give to his the order such may proof security shall be vacated.
Shimmel, Hill, Bishop Gruender, C., & P. by Johnson, Hammond, Richard B. Phil B. Phoenix, Brice I. Bishop, appellant. Babbitt, Gen., Bruce E. Atty. John L. Jones, Gen., Memmott, Asst. Atty. Jon M. Gen., Phoenix, Atty. Former Asst. ap- pellee Thorneycroft. Philip GORDON, Justice: This appeal summary is an from a judg- ment entered in two consolidated cases and denial of a motion to vacate said C-276481, judgment. No. In Cause Purola- (hereinafter tor Security, Purolator) Inc. sought a paid refund of license taxes and to abate allegedly taxes due Department of Transportation. The predi- action was cated on a determination the Arizona Corporation Commission that Purolator was not a common carrier. This determination Department return for contract challenged price, the Arizona customer’s No. C-286436. protected Cause valuables were from the time of 17A, jurisdiction pursuant pick-up delivery destination, take until We at its Rules, 47(e). Supreme Court them in the placing custody guard, car, confining them within the armored Initially, petitioned temporary storage within Purolator’s" hearing on Corporation Commission for *3 argues Based on that vault. Purolator Following aas common carrier. its status it is in the business of and securi- evidence, of the Commission presentation ty rather than being a common carrier. fell within that Purolator’s activities ruled Corporation of Com purview Arizona the being dispute There no to the as Guards, 103 Security v. Continental mission summary judgment Purolator moved for (1968); 443 P.2d and there The Superior granted both cases. Court fore, not a carrier. The it was Department favor of of the ap having of Department Transportation, finding “the activities of Commission, challenged before the peared Security, Inc., bring Purolator do not them an action in the commencing the decision exemption the private within carrier as * * * pursuant 40-254. Superior Court to A.R.S. § Corporation stated Arizona Commission Continental presented evidence to the Guards,” supra. Corpora- the transcript included a of proceedings, and the Gross tion Commission considering Before the tax issues raised Reports This Receipts Tax of Purolator. appeal, necessary it is to consider in this opera- revealed that Purolator’s preliminary two issues: car service included both an armored tions (1) Trans- Department Whether of ar- stationary guard service. The and a portation standing challenge had to the de- operated service 39 vehicles sta- mored car Commission; Corporation of the cision Arizona, while major of tioned in the cities (2) is, Whether Purolator as a matter of guard only operated stationary service law, common, contract, private carrier. to its attending and Phoenix. In in Tucson customers, Purolator’s armored 400 to 600 Standing Department of the of 64,000 40,000 and cars traveled between Transportation from month. revenues Reported miles each $45,000 40-254(A) monthly provides, varied from to A.R.S. inter § service this $71,000. only informa- approximately alia: concerning operations in the record
tion
interest,
attorney
“Any party in
or the
guard
was for
stationary
service
of the
state, being
general on behalf
dis-
of the
revenue of
generated
when
May,
with
or decision of the
satisfied
order
* * *
$64,000
$15,000;
for the ar-
compared with
commission, may
commence an
* * *
car service.
mored
superior
action in the
court
defendant,
to
against
commission as
contracts
separate
entered into
set
or deci-
vacate and
aside such order
a customer
of its customers.
If
with each
*
.
sion
cost
on-premises security, the
only required
questioned
of
the decision of
corresponded
the number
It cannot be
directly
However,
directly
Commission
affect-
required
if one
utilized.
guards
Depart-
services,
price
ed the revenues available to
car
the contract
armored
highway main-
guards ment of
cost of two
was calculated
Additional-
based on the
tenance. See A.R.S. 40-641.
security), insurance
(minimum
§
legislative
has
in-
mileage.
ly,
Mile-
this Court
noted
property, and
value of the
40-641
tent of A.R.S. 40-601 and A.R.S.
§
rate of one dollar
figured
was
age
miles,
collect revenue for the maintenance
“to
twenty-five
mile for the first
per
who enter
twenty-five
highways
parties
for the next
per mile
cents
arrangements which look di-
into business
miles,
per
cents
mile thereafter.
and 60
public high-
“(1) He
rectly
engaged
to the inordinate use of
must
in the business
(unless
ways
pecuniary
realize
benefits
of carrying goods
for others as a
incidental to other
merely
this use
busi-
employment, and must hold himself out
* *
activities)
Campbell v.
ness
ready
engage
as
Plan, Inc., 101 Ariz.
Commonwealth
goods
persons generally
busi-
(1966);
Boyes
ness,
(2)
and not as a
occupation.
casual
State,
105 Ariz.
carry
He must undertake to
goods of the
Legislature
empowered
Since the
Su-
kind to which his business is confined.
perintendent
Department
of Trans-
(3)
He must
to carry
undertake
intent,
out
see
portation
carry
A.R.S.
methods
which his business is conduct-
40-658, 40-659, it
incongruous
would be
§§
ed,
(4)
and over his established roads.
Department
Transporta-
that the
hold
must be for hire.”
also,
party
tion
not a
in interest.
See
Claypool
Lightning Delivery
Procedure,
Arizona Rules of Civil
*4
262, 266,
126,
Ariz.
(1931);
299 P.
127-28
19(a).
Corp.
Arizona
v.
Commission
Reliable
Co.,
Transportation
Supreme Court Review P.2d at 1099. When an action is based on the 40-254, authority of the The first element of this test is critical. proceeding, de novo. In such a Court acts Although argues that it is in the right form the Court “had the to its own business of and security rather independent judgment as an tribunal as to others, carriage goods of for the rec- the conclusion to be drawn from the evi ord indicates that Purolator transported dence, subject only to the rule laid down property regular of its customers on a basis. * * *, proof that the burden of is on the This monthly property movement of a over plaintiff to satisfactory show clear and 40,000 minimum of of high- miles Arizona that the order of the commission is ways is of indicative the nature of Purola- Corporation or unlawful.” unreasonable transportation tor’s of property, business — Line, Inc., Peoples Freight Commission v. transportation. albeit secure Similarly, the 158, 160-161, 41 Ariz. 16 P.2d supports a finding record of Purolator’s (1932); Corporation Arizona Commission holding itself as to “ready engage out in the Transportation Reliable 86 Ariz. goods persons general- of for test, however, to ly as a business.” be is applied this is whether there of concept ‘holding “The out’ cannot be sup substantial evidence the record to limited, however, merely to traditional setting port superior the order of the court soliciting advertising or for the finding aside reason Corporation of Com Corporation legislative designed mission. Arizona Commission that the are controls Co., supra; Reliable Cor to cover not the methods utilized poration People's Freight Commission v. to acquire carrier business but rather its Inc., Line, supra. participation oper- in the field which it ates. The choice in the first instance of Purolator
Status belongs particular to the motor carrier. 40-601(A)(5). defines a A.R.S. § No carrier is forced to a become common “any motor carrier of property common carrier, but when it itself holds out person engaged on public generally or it in serve when of any public highway by motor vehicle so, subjects regula- does itself fact property compensation for as a common concept public’ of this tion. ‘the carrier.” persons area includes those or companies require may particu- require As the statute fails to further define type of carrier”, lar service furnished the motor applied this Court has a “common (Emphasis added.) law standard: carrier.” v. Reliable In a case such as where Commission all of a P.2d activities are Transportation, 86 Ariz. at business’s not carrier nature, it must also be determined “wheth at 1100. er the of of highway use such a in the record where Puro- only instance part it is nature that of other was refused service to customer lator reason, business, and for that pay the on that customer’s refusal to based requires regulated it be interest as a for isolated Except the service. this cost of Continental, common carrier.” at incident, nothing in the record there is 416. Continental right that Purolator reserved indicate operated training Guards five divisions: business, long so as the business to refuse placement, investigation, polygraph, and se carried legal property curity, and an armored car service with one its business was the kind to which was of (which per armored car accounted for five distinguish the case These facts confined. revenue). gross cent of Puro Continental’s from that Continental Securi- judice sub lator, hand, two other had but divi Guards, Continental, it was ty supra. sions with its armored car service account that: found ing approximately per cent of its hold itself out as does not “[Continental] advancing total revenue. We still “are not all willing potential to haul for customers any upon mileage per test based driven or openly It re- without discrimination. centage man hours or labor devoted to a right carry to refuse serves particular phase enterprise”. an Boyes equipment State, when it has applicant even 105 Ariz. at P.2d at 91. *5 may Ariz. at 443 P.2d at Nor type available.” 103 “a determination of the * * * solely business on the based 415. percentage receipts” attributable to a sepa- into Purolator entered Merely because phase operations. Continental, of its 103 not with each customer does rate contracts However, Ariz. 443 P.2d at at 411. change nor does it foregoing alter the are determining these facts relevant Ari- Purolator’s business. the character of is more less “whether or Reliable Commission v. zona principal than a mere incident to the com supra. Transportation, Boyes, enterprise.” mercial with contrasts here also The record 90. 459 P.2d at Express Company Public Service Brink’s case, “So in as in other similar it Commission, A. 346 Pa.Super. the general is conduct of the actual busi- Continental de- (1935), cornerstone ness, statements, and not isolated acts or charge for the work “the cision. Brinks private, which fix the character trav- dependent upon the distance [was] party. of a common carrier on a And no consumed, upon alone eled, time nor subterfuge pre- form of or evasion will 178 A. at carried.” value of articles vent going the courts from behind Continental, 348; 103 Ariz. at Claypool form to the substance.” here, very are these Whereas at 415. Co., Lightning Delivery Ariz. at as the basis used Purolator factors P. at charges. standard to the Applying the Continental record, it becomes clear that Purolator is com- necessary for a Although is not security as a common carrier which offers termi- between fixed operate carrier to mon service, carriage of its not vice-versa. part schedules, ni, upon regular Reliable nor such, con- As Purolator’s activities stand in show supra, the record does use of an armored trast with incidental operated along established Purolator that security operations. car in Continental’s was, furnished routes. Thus, foregoing for hire. the four- discussion demonstrates question, without record carrier met the substantial part test Claypool set forth in car satisfies the test armored activities. record of Purolator’s Delivery Lightning supra, rather
establishing exception the narrow Arizo Corporation Commission Continental
na Guards,
Security of our supra. Because issue, not con of this we need
disposition the tax were also
sider refund issues which appeal.
raised
Judgment of the affirmed. superior court STRUCKMEYER,
CAMERON, J.,C. V. HAYS, J., J., concur.
C.
HOLOHAN, Justice, concurring: specially judgment of the appellant
found private exempt not a carrier
Inc. was agree on motor carriers. I with this
the tax
holding because the activities of Purolator of a contract motor carrier. Con-
are those carriers motor
tract motor and common car- subject both on motor
riers are the tax
carriers. A.R.S. 40-641. I concur forego-
affirmance
ing reason. *6 Arizona, Appellee,
The STATE
George JOHNSON, Appellant.
No. 3888. Babbitt, Bruce E. Atty. Gen. William III, Schafer, J. Duke, and Cleon M. Asst. Arizona, Supreme Court of Attys. Gen., Phoenix, for appellee. In Banc. Lee, Maricopa Ross P. County De- Public Sept. by Terry Adams, fender J. Deputy Public Defender, Phoenix, appellant. CAMERON, Chief Justice. February George On 25 Johnson jury was convicted three counts earnings receiving prostitute, violation of A.R.S. 13-584. He sen- tenced to three concurrent terms of less more than years two nor three Prison. He was State also assessed