445 P.2d 990 | Utah | 1968
In this proceeding the plaintiffs challenge the right of the Public Service Commission to issue authority on a temporary basis to the defendant common motor carriers. Insofar as is material here, each of the three defendants is rendering what can be called a specialized carrier service. Their certificates are generally similar, but contain some variations in wording, not material to the principal issue here. They are authorized to make hauls throughout the State of an unusual or irregular character which, by reason of “size, shape, weight, origin or destination require equipment or service of a character not regular-by furnished by the regular .common carriers * *
The difficulties which provide the foundation for the instant proceeding are these: some of the plaintiffs, who are competing motor carriers, have contended that the defendant Ashworth Transfer was rendering services not authorized by its certificate. This resulted in an Investigation and Suspension proceeding against Ash-worth. Although it was terminated in favor of Ashworth by dismissal, that proceeding was characterized by the Commission itself as, “ * * * awkard, incomplete, and wholly unsatisfactory to the Commission. * * * ”
As a result of that unsatisfactory state of affairs, the defendants filed with the Commission a “Petition For Constmction of Certificate of Convenience and Necessity and in the Alternative an Application For a Certificate of Public Convenience and Necessity.” In it they sought confirmation of the right to offer the service which they claim they have been performing under such certificates for many years, which right is challenged by the plaintiff protesting carriers.
The specific problem confronted in the proceeding before this court arises thus: At the defendants’ request the Commission
The plaintiffs’ argument is that inasmuch as the legislature expressly granted the Commission power to grant temporary operating authority to contract carriers, by implication, it precluded the issuance of such authority to common motor carriers. This is based on Sec. 54-6-10, U.C.A.1953:
The commission shall have power, without a hearing, to issue temporary, seasonal or emergency permits to contract motor carriers in intrastate commerce, * * *. Such permits and licenses may be issued upon such information, application or request therefor, as the commission may prescribe * * *. but in no event shall any temporary, seasonal or emergency permit or license be issued for a period of time greater than sixty days in length * * *.
Reliance is placed upon the maxim “expressio unius est exclusio alterius.” It is appreciated that that maxim is sometimes helpful in determining the meaning of an otherwise questionable statute. But its only usefulness is for that purpose: as a rule of construction.
The first comprehensive act was passed by the legislature in 1933 (Chap. 53, S.L.U.1933). Article II thereof relates to the issuance of certificates of convenience and necessity and the regulation of common motor carriers; while Article III deals separately with contract motor carriers and the issuance of operating permits
It is not to be doubted that in the performance of the responsibility imposed upon the Commission of seeing that common carrier service is available to the public, because of the constant increase of populations and industry, exigencies may arise where it is necessary and desirable to issue authority on a temporary basis so the public will not be deprived of service it should have. Nor is it questioned that the administrative practice in the past has always been to issue such temporary authority where it seemed necessary and advisable, at least for reasonable periods of time, so that the regular procedure on an application could be completed. From what we have said above about the statutes relating to motor carriers and the practical necessities involved in carrying out their objectives, we believe that the practice followed of issuing temporary authority where it is deemed necessary is a fair and reasonable interpretation under the Act. Insofar
In connection with the conclusion just stated some further observations are deemed appropriate. There always exists the possibility of the Commission abusing such power: by the ill-advised issuance of such temporary authority where there is actually no emergency need therefor, or by issuing it for too long a time, or by successive grants, which would unjustifiably affect adversely existing carriers, meanwhile circumventing the regular procedure of notice and hearing to determine the propriety of issuing such authority. It is inherent in the nature of such emergency procedure that the Commission is obliged to recognize the limitation that “temporary authority” should be confined to what the term implies: a temporary expedient to meet some emergency which public convenience and necessity requires being taken care of, and where some hardship will result unless it is supplied while the regular procedure of notice and hearing is being carried out.
It is our opinion that the record here does not demonstrate that the foregoing requirements are met, particularly in view of the fact that the “construction” of their certificates as sought by the defendants appears to be somewhat at variance with their prior existing certificates.
. See Ashworth Transfer Co. v. Public Service Commission, 2 Utah 2d 23, 268 P.2d 990, for detail of one of these certificates and extensive discussion thereon; and also Salt Lake Transfer Co. v. Barton Truck Line, Inc., 8 Utah 2d 401, 335 P.2d 829.
. See 50 Am.Jur. Statutes 245. Also see Attorney General of Utah v. Pomeroy, 93 Utah 426, 73 P.2d 1277, wherein Justice Wolfe speaking of the maxim said: “This maxim is not controlling in construing a statute * * *, but is only one of the aids to determine intention.”
. See statements by Lord Campbell in Saunders v. Evans, 8 H.L.Cas. 721, 729, 11 Eng. Reprint, 611, and by Lord Justice Lopes in Colquhoun v. Brooks, L.R. 21 Q.B.Div. 52, 65.
.According to Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793, the maxim “properly applies only when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference that
. See Title 76, U.C.A.1943, and Title 54, U.C.A.1953.
. This is also in harmony with the general powers granted the Commission to supervise and regulate public utilities granted by Sec. 54^4-1, U.C.A.1953: ‘‘The eom-mission is hereby vested with power * * * to do all things, whether herein specifically designated or in addition thereto, which are necessary or convenient in the exercise of such power
.See Ford v. United States, footnote 4, supra.
. 16 Utah 2d 87, 396 P.2d 404.
. In Continental Bus System v. Public Service Commission, footnote 8 above, tbe court also observed that: “The very fact that the permits are considered to be temporary in nature indicates that its duration should be short * *
.That the extent of authority must be found -within the certificate and cannot be extended by “interpretation”; see W. S. Hatch v. Public Service Commission, 3 Utah 2d 7, 277 P.2d 809.