Willis v. Buck

*476 MR. JUSTICE GALEN delivéred the opinion of the court. This is an action in injunction to permanently restrain and enjoin the defendants from operating motor vehicles as a com *477 mon carrier of passengers and personal effects incident to passenger service over the public highways between the towns of Plains, Hot Springs and Camas, Montana. Upon issue joined the cause was tried before the court without a jury, at the conclusion of which the court made its findings of fact and conclusions of law in plaintiff’s favor and directed the issuance of a permanent injunction. Judgment was accordingly duly entered, and the appeal is prosecuted therefrom. It appears that on or about the fifteenth day of April, 1926, upon compliance with the law and the regulations of the board of railroad commissioners, the plaintiff was duly and regularly licensed by that board to operate motor vehicles for hire in passenger service over such route. The license so issued granted to him the exclusive right and privilege of transporting passengers and their luggage between the points named, and is still in force and effect. On or about July 3, 1926, the defendants made application to such board for an order granting to them a license to operate motor vehicles in providing passenger and express service over the identical route and highways between the same termini. At a public hearing held before the board at the town of Plains, the plaintiff and the defendants and others interested were present. After the conclusion of such hearing the board, on or about July 27, 1926, denied the defendant’s application, upon the ground that adequate service is being provided. Subsequent to such order of the board the defendants continued to operate in defiance thereof, resulting in this proceeding. ' The defendant’s assignments of error present two questions proper for consideration in disposition of this appeal, viz.: (1) The jurisdiction of the court; and (2) the constitutionality of the law. Both will be treated and disposed of in the order stated. The statute, Chapter 154, Laws of 1923, provides: “No transportation company, as defined in section one of this Act, shall hereinafter operate any motor vehicle, motor truck, motor trailer, bus trailer, semi-trailer or other trailer in connection *478 therewith for the purpose of transportation of persons or property for compensation on any public highway of this state without first having obtained from the railroad commissioners of Montana a certificate which shall set forth the special terms and conditions under which permission is granted to operate any of the vehicles above mentioned. * * # A permit issued by the railroad commission to operate any motor vehicle or any other vehicle prescribed by this Act for compensation over any of the highways of the state of Montana shall not be an exclusive right or license to operate over any route, road, highway or between any fixed terminals, but said commission shall have the power after hearing, when the applicant requests a certificate to operate in a territory already served by a certificate holder or licensee, under this Act, only when the existing auto transportation company or companies serving such territory, route or stage line, does not provide adequate transportation facilities and service to the satisfaction of the commission, and in all other cases with or without hearing, to issue said certificate as prayed for, or for good cause shown to refuse to issue same or to issue it for the partial exercise only of the said privilege sought, and may attach to the exercise of the rights granted by said certificate such terms and conditions as in its judgment the public convenience and necessity may require.” (Sec. 4.) 1. As to the jurisdiction of the court, it is the defendant’s contention that a court of equity is without jurisdiction since an adequate remedy is provided by the law, viz., criminal prosecutions or actions to recover damages sustained. We see no merit in this- contention. Where, as here, plaintiff is being interfered with in the exercise of a franchise conferred upon it by the state, the mere fact that a penalty attaches is not sufficient to deny relief by injunction. The facts stated are sufficient to warrant injunctive relief, thus preventing a multiplicity of actions at law. (Wheeler v. McIntyre, 55 Mont. 295, 175 Pac. 892.) *479 Mr. Pomeroy in his work on Equity Jurisprudence, second edition, states the correct rule as. follows: “An injunction is the appropriate remedy to protect a party in the enjoyment of an exclusive franchise against continuous encroachments. ‘Such continuous encroachments constitute a private nuisance, which courts of equity will abate by injunction. The jurisdiction rests on the firm and satisfactory ground of its necessity to avoid a ruinous multiplicity of suits, and to give adequate protection to thre plaintiff’s property in his franchise. To be entitled to relief, a plaintiff need show only that he is entitled to the franchise, and that there is continuous interference therewith by the defendant. It is not necessary that the plaintiff establish his right at law.” (Sec. 2016.) And, further, that author well says: “It is not necessary, to entitle the owner to relief in equity, that the franchise should be an exclusive franchise in the sense that the grant of another similar franchise to be exercised and enjoyed at the same place would be void. The theory is that the defendant who has no franchise is acting in violation of law in operating * * * without authority from the sovereign power, and that the owner of the franchise may complain of and restrain such illegal acts when they result in injury to his franchise, which, in the eye of the law, is property. As to the one who is invading his rights without legal sanction, the franchise is an exclusive franchise, although the owner of it might not be entitled to any protection as against the granting of a similar franchise to another.” (Sec. 2017.) And Mr. High, a universally recognized authority in this country on the subject of injunctions, states the rule which we deem correct and applicable as follows: ‘ ‘ The violation of franchises or special privileges conferred by legislative authority, either upon individuals or upon corporations, affords frequent occasion for invoking the extraordinary aid of equity by way of injunction to remedy evils which the usual modes of redress in courts of law are powerless to mitigate or to prevent. The value of a franchise being generally dependent upon its ex- *480 elusive use and possession, it may be protected upon the ground of the inadequacy of the legal remedy and the probability of thus avoiding a multiplicity of suits.” (High on Injunctions, 4th ed., sec. 897.) .Whether the certificate held by the plaintiff, Willis, be con:- sidered as a license, a permit or a franchise, it is essentially a species of property, the value of which is dependent upon the exclusiveness of the privilege conferred. 2. It is argued that the Act is violative of section 27 of Article III of our Constitution, in that the defendants are deprived of their liberty and property without due process of law. The argument is directed primarily against section 4 of the Act above set forth. We see no merit whatsoever in this contention. In State v. Johnson, 75 Mont. 240, 243 Pac. 1073, we considered the constitutionality of the statute, and after considering the question as to whether it constituted a violation of section 1 of Article IY of the Constitution, as being an unwarranted delegation of legislative power, Mr. Justice Matthews, speaking for the court, said: “Nor does it violate section 3 or section 14 of Article III of the state Constitution, nor the Fourteenth Amendment to the Constitution of the United States, securing to the people the right of acquiring, possessing, and enjoying property, and prohibiting the taking of private property for public use or without due process of law, for, while a citizen has the right to travel upon the public highways and to transport his property thereon, that right does not extend to the use of the highways, either in whole or in part, as a place of business for private gain. For the latter purpose no person has a vested right in the use of the highways of the state, but such use is by 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, provided the imposition applies impartially.” Again, in considering this enactment, we have said that: “We do not hesitate to hold that all reasonable regulations with reference to the matter of registration, license fees and the *481 like such as are contained in Chapter 154 are within the power of the state and apply to automobiles engaged in interstate traffic as well as those operated exclusively within the state. Accordingly it is within the province of the board of railroad commissioners to whom the legislature has delegated authority, to administer the Act and impose reasonable and impartial regulations in the use of our highways by persons engaged in, or purposing to engage in, the transportation of passengers and freight by automobile as a common carrier.” (Interstate Transit Co. v. Derr, 71 Mont. 222, 228 Pac. 624.) Neither the personal liberty nor property of the defendants has been taken away from them without legal process. The law is general in its application, but the defendants were not able to avail themselves of the benefits of it, simply because the field was already covered, the plaintiff enjoying the advantage of an exclusive permit and rendering adequate service. There is no inherent right to use a public highway in the conduct of the business of a common carrier for private gain without the consent of the state (Hadfield v. Lundin, 98 Wash. 657, Ann. Cas. 1918C, 942, L. R. A. 1918B, 909, 168 Pac. 516), especially in view of the state’s assertion of right to regulate the subject, and therefore no constitutional right of the defendants was impaired by denying them a permit or license, and their continued operation in defiance of state authority justified the issuance of a permanent injunction. vThe judgment is affirmed. 'Affirmed. Mb. Chief Justice Callaway and Associate Justices Myers, Stark and Matthews concur.