Purple Truck Garage Co. v. Campbell

BTJBNETT, J. The three defendants compose the Public Service Commission of Oregon. The numerous plaintiffs are properly classified into three divisions. Seventeen of them, according to the statement in the brief of the defendants, are engaged in transporting merchandise and various kinds of property for others over the public highways of the state for compensation and it is claimed by the plaintiffs that this is performed under private contract. Another type of service involved in this suit is that furnished by the Purple Truck Garage Company. It is principally engaged in highway construction wherein, in addition to the transportation of material for that purpose, it processes the same with graders and other appliances, resulting in a finished road surface. An example of the third class is that of James A. C. Tait & Company. It sells building material of various kinds, as an ordinary merchant, and delivers it at its place of business or, if the customer desires, it will, for an additional charge depending upon the length of the haul, deliver it at the place where it is to be used. All the plaintiffs *486 use the public highways of the state in the transactions outlined above. The complaint asserts, in substance, that the defendants, in their capacity as the Public Service Commission, are seeking to enforce against the plaintiffs the provisions of Chapter 10, General Laws of Oregon, passed at the special session of 1921, being an act entitled: “An act providing for supervision and regulation of the transportation of persons and property for compensation over any public highway by motor vehicles, motor trucks, motor busses, bus trailers, semitrailers and other trailers used in connection therewith, and by other motor vehicles; defining what constitutes transportation for compensation; defining transportation companies and providing for the supervision and regulation thereof by the Public Service Commission of .Oregon, providing for the enforcement of the provisions of this act and for punishment of violations thereof, and declaring an emergency. ’ ’ It is said, in substance, that the defendants have caused the arrest and prosecution of the drivers engaged by the plaintiffs in the operation of their trucks and will continue so to do unless enjoined. With appropriate allusion to the various provisions of the statute, the plaintiffs aver that they are not engaged in any way in the transaction of business as defined in the statute and are not subject to its terms. The substance of their contention is that they are engaged purely in the transaction of private business under private contracts and do not profess to serve the public in any sense, but only persons of their selection with whom they choose to contract. It is settled by Spaulding v. McNary, 64 Or. 491 (130 Pac. 391, 1128), that: *487 “ * * if the threatened enforcement by prosecuting officers of a void statute will affect the property rights of a party, injunction will lie to prevent the menace from being carried into effect; and that the conduct of such officers, in the case indicated, are their personal acts in which the State is not involved.” —citing numerous authorities. See, also, Chan Sing v. Astoria, 79 Or. 411 (155 Pac. 378). A sufficient reason for not enforcing the act in question is that it was expressly repealed by Section 40 of Chapter 380, Laws of 1925, which repealing act took effect prior to the commencement of this suit. Another effective reason is found in the opinion of the United States Supreme Court rendered June 7, 1926, in the case of Frost v. Railroad Commission of California, where that court declared unconstitutional an act couched in almost the identical terms of that in question, on the ground that in effect it compelled a private carrier to assume against his will the duties and burdens of a common carrier. The Legislative Assembly of this state seems to have recognized that doctrine in Chapter 380 of the Laws of 1925, wherein it takes up the whole subject of motor transportation over public highways and confines its operation substantially to motor carriers, which term the enactment defines thus: “ ‘Motor carrier’ means every corporation and person, their lessees, trustees or receivers, appointed by any court whatsoever, owning, controlling, operating or managing any motor vehicle used in the business of' motor transportation of and for the general public and not operating exclusively within the limits of an incorporated city or town.” By Section 2 of the act it is provided: *488 “All motor carriers, as the term motor carrier is defined, in this act, are hereby declared to be common carriers. ’ ’ The statute then proceeds to regulate such common carriers and does not profess to affect private carriers. The distinction between common carriers and private carriers is well established. The private carrier, indeed, transports goods for hire, but he does not hold himself out as obliged to serve the public generally or to serve all who may apply. On the other hand, the common carrier is engaged professedly in public service and he must serve to the extent of his capacity all who apply to him for such service without discrimination and generally, as required by statute, for a fixed and uniform compensation which he may not vary to favor one person or another. In the instant case, the plaintiffs are engaged in private service. They may agree to 'serve A at a certain compensation and refuse to serve B for even a greater recompense and under the same or similar circumstances. In other words, they have the undoubted right of delectus personarum. They are not bound to contract with anybody, but the common carrier engaged, as the new statute says, “in the business of motor transportation of and for the general public,” must serve alike, within its capacity, all who may apply for such service. Because the Statute of 1921, under which the defendants were proposing to act, was repealed and that according to the doctrine of Frost v. Railroad Commission, supra, it was unconstitutional, the demurrer to the complaint was properly overruled. For the reason, also, that under the act of 1925, the regulation of the existing statute applies only to those engaged in transportation of and for the *489 general public, which by the allegations of the complaint does not apply to the present plaintiffs, the demurrer to the complaint was properly overruled and the decree of the Circuit Court enjoining the defendants must be affirmed. Affirmed. (250 Pac. 213.) For appellants there was a brief over the name of Mr. I. H. Van Winkle, Attorney General, with an oral argument by Mr. Wm. P. Ellis and Mr. J. M. Devers. For respondents there was a brief over the name of Mr. George W. Gearhart, with an oral argument by Mr. Allen H. McCurtain. Affirmed on rehearing October 5, 1926.