Public Utilities Comm. of Utah v. Pulos

ELIAS HANSEN, J. This is a proceeding prosecuted by the public utilities commission of Utah to enjoin the defendant from transporting freight or merchandise for compensation between Salt Lake City, Utah, and the Uintah Basin, Utah. The commission filed the complaint against the defendant in the district court of Salt Lake county, Utah. Thereafter an amended complaint was filed. The amended complaint, omitting the title of the court and the cause, reads as follows: “Comes now the plaintiff above named, and, upon the consent of . defendant and by leave of court, files this, its amended complaint, and, for cause of action, alleges: “1. That. Elmer E. Corfman, Thomas E. McKay and George F. McConagle are the duly appointed, aeting and qualified Public Utilities Commission of the State of Utah, and bring this action on behalf of the said State of Utah. “2. That under and by virtue of the authority vested in and conferred upon the aforesaid Commissioners by Title 91, Compiled laws of Utah, 1917, and amendments thereto, said Commission is vested with power and jurisdiction to supervise and regulate all public *530 utilities and common carriers in the State of Utah, as defined in the aforesaid Title and amendments, and to supervise all of the business of every other public utility, and to hold hearings upon applications to establish lines and routes throughout the State for the transportation of freight and passengers, and to issue certificates of convenience and necessity for the operation of the same. “3. That under the law, as set forth in said Title and said amendments, every person, firm or corporation who is engaged in, or engages in, the transportation of persons or property over regular routes between points in this State is designated as a common carrier or public utility, and as such is required to apply for and secure a certificate of convenience and necessity from the aforesaid Commission, before he, they or it can establish and operate any line or route between points in this State for the transportation of freight, express or passengers for hire. “4. That defendant, George Pulos, also known as George Paulos, has undertaken to operate, and is now operating, for public service within this State, a freight truck line, and in so doing is carrying freight and merchandise for hire and for compensation over the public highways of this State, between Salt Lake City, Salt Lake County, Utah, and Vernal, Uintah County, Utah, via Duchesne, Duchesne County, Utah, serving points within said Uintah Basin, without having received from said Commission a certificate of convenience and necessity or permit, or without authorization so to do, and in violation of the provisions of said Title 91, Compiled Laws of Utah, 1917, and amendments thereto, commonly known as the Public Utilities Act, in this that said defendant for more than one year last past, for hire and for compensation, has accepted, and is now accepting, freight and merchandise from the general public whenever the same has been offered, and has been, and is now, transporting the same between said points, and has been, and is now, serving the points hereinbefore set forth; that said defendant, while operating and accepting freight and merchandise, as aforesaid, did, between November 1, 1928, and February 12, 1929, accept freight and merchandise from the Western States Grocery Company, Korns Warehouse, Utah Ice & Storage Company, Purity Biscuit Company, Salt Lake Hardware Company, in Salt Lake City, Utah, consigned to points within said Uintah Basin, and did, between said dates, for hire and for compensation, haul and transport said freight and merchandise from said Salt Lake City, Salt Lake County, Utah, over the public highways of this State, via Duchesne, Duchesne County, Utah, to points within said Uintah Basin, and did deliver the same to Cleveland Service Station, Roosevelt Lumber Company, Allen’s Cash Store, Vernal Lumber Company, Ashton Brothers, *531 Woodward Furniture Company, Charlie Hatch, David Witmer, Ashley Co-op, and numerous other individuals, firms and corporations, the names of which are unknown to plaintiff, but are known to and within the knowledge of said defendant, all which individuals, firms and corporations are located within said Uintah Basin: that the exact dates upon which said shipments Were made, and the names of the consignees of said shipments, are unknown to' plaintiff, hut are known to and within the knowledge of said defendant. “5. That at no time has there been issued or granted to said defendant, by said Commission, a franchise or certificate of convenience and necessity, or a permit, to operate as a common carrier or public utility over the public highways of this State or at all, and that said defendant does not now have, and has not had, at any of the times hereinafter mentioned, such franchise or certificate of convenience and necessity or permit. “6. That if the acts of said defendant, of which complaint is herein made, are allowed to go unchallenged, the efficiency and usefulness of the work of the Public Utilities Commission of Utah will be greatly impaired and held in contempt by said defendant and others, and its orders openly violated and disregarded, and for these reasons, by legal- and’ proper action heretofore taken, the Public Utilities Commission of Utah now directs commencement of this proceeding .on behalf, of the State of Utah. “7. That plaintiff is without any adequate or speedy remedy at law for the wrongs and injuries herein complained of, and practiced against it, by said defendant, and that unless defendant is enjoined from so unlawfully hauling and transporting freight and merchandise, as hereinbefore set forth, defendant will continue to do and perform said acts, and plaintiff will suffer irreparable injury. “Wherefore, plaintiff prays judgment against said defendant that an alternative writ of injunction be issued, and that said defendant be required to show cause why he should not be perpetually enjoined and restrained from operating a freight truck line for the hauling of freight between Salt Lake City, Salt Lake County, Utah, and Vernal, Uintah County, Utah, via Duchesne, Duchesne County, Utah, and serving points within the Uintah Basin in said State, and be compelled and enjoined to obey the orders of the Public Utilities Commission of Utah, and for such other relief as to the court may seem just and equitable, and for costs.” The defendant filed a demurrer to the amended complaint. The demurrer reads as follows: *532 “Comes now the defendant and demurs to the amended complaint of the plaintiff on file herein upon the following grounds and for the following reasons: “1. That said complaint does not state facts sufficient to constitute a cause of action against this defendant, or at all. “2. That the plaintiff is without legal capacity to sue in the action, and under the circumstances set forth in plaintiff’s complaint it not appearing from said complaint, or otherwise, that there have ever been any proceedings in this matter before the Public Utilities Commission of Utah as required by Title 91 of the Compiled Laws of Utah, 1917, and the amendments thereto, and until said proceedings have been had the said Public Utilities Commission has no legal capacity to sue in a plenary suit in the District Court, or otherwise. “3. That the court has no jurisdiction of the subject matter of the action set forth in plaintiff’s complaint.” The court below sutained the demurrer. The commission declined to further plead and elected to stand on the amended complaint whereupon the trial court dismissed the proceeding. The commission prosecutes this appeal from the judgment of dismissal. Two questions are presented for review 'by the assignments of error. (1) Does the commission have authority to prosecute an action such as. this in the manner that it is attempting to prosecute it ? (2) Does the complaint state a cause of action against the defendant? In 1917, the Legislature of Utah created a public utilities commission, defined its powers and duties, and prescribed its procedure. Comp. Laws Utah 1917, title 91, chapters 1, 2, 3, 4, and 5. Among the provisions of the act are the following: Section 4775: “There is hereby created a public utilities commission of Utah, and by that name the commission may sue and be sued.” Section 4818, as amended by Laws Utah 1919, special session, c. 14, as amended by Laws Utah 1925, c. 12: “No railroad corporation, street railroad corporation, aerial bucket tramway corporation, gas corporation, electrical corporation, telephone corporation, telegraph corporation, heat corporation, automo *533 bile corporation, or water corporation shall henceforth establish or begin construction or operation of a railroad, street railroad, aerial bucket tramway, or of a line, route, plant or system, or of any extension of such railroad or street railroad, aerial bucket tramway, or of a line, route, plant or system, without having first obtained from the commission a certificate that the present or future public convenience and necessity will require such construction; provided, that this section shall not be construed to require any such corporation to secure such certificate for an extension within any city or town within which it shall have heretofore lawfully commenced operations, or for an extension into territory either within or without a city or town contiguous to its railroad, street railroad, aerial bucket tramway, line, plant or system, and not theretofore served by a public utility of like character, or for an extension within or to territory already served by it, necessary in the ordinary course of its business; and provided further, that if any public utility, in constructing or extending its line, plant or system, shall interfere or be about to interfere with the operation of the line, plant, or system of any other public utility already constructed, the commission on complaint of the public utility claiming to be injuriously affected, may after hearing, make such order and prescribe such terms and conditions for the location of the lines, plants, or systems affected as to it may seem just and reasonable.” Section 4782, subd. 13: “The term ‘automobile corporation,’ when used in this title, includes every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, engaged in, or transacting the business of, transporting passengers or freight, merchandise or other property for compensation, by means of automobiles or motor stages on public streets, roads or highways along established routes within this state.” In 1925, the Legislature made provision for the payment of a tax on all automobile corporations engaged in the business of transporting passengers or freight, merchandise or other property for compensation, whether holding a certificate. of convenience and necessity issued by the public utilities commission or not. Laws Utah 1925, c. 117. The definition of an “automobile corporation,” however, was not changed under the act of 1925. Section 4798: “The commission is hereby vested with power and jurisdiction to supervise and regulate every public utility in this state, *534 as defined in this title, and to supervise all of the business of every such public utility in this state, and to do all things, whether herein specifically designated, or in addition thereto, which are necessary or convenient in the exercise of such power and jurisdiction.” Section 4839’: “It is hereby made the duty of the commission to see that the provisions of the constitution and statutes of this state affecting public utilities, the enforcement of which is not specifically vested in some other officer or tribunal, are enforced and obeyed, and that violations thereof are promptly prosecuted and penalties due the state therefor recovered and collected, and to this end it may sue in the name of the state of Utah. Upon the request of the commission, it shall be the duty of the attorney-general, or the district attorney of the proper district and county, to aid in any investigation, hearing, or trial under the provisions of this title, and to institute and prosecute actions or proceedings for the enforcement of the provisions of the constitution and statutes of this state affecting public utilities and for the punishment of all violations thereof.” Section 4842: “Whenever the commission shall be of the opinion that any public utility is failing or omitting, or about to fail or omit, to do anything required of it by law, or by any order, decision, rule, direction, or requirement of the commission, it shall direct thing, or about to do anything, or permitting anything, or about to permit anything, to be done contrary to or in violation of law or of any order, decision, rule, direction, or requirement of the commission, it shall direct the commencement of an action or proceeding in the district court in and for the county in which the cause or some part thereof arose, or in which the corporation complained of, if any, has its principal place of buiness, or in which the person, if any, complained of, resides, in the name of the state, for the purpose of having such violations or threatened violations stopped and prevented, either by mandamus or injunction. * * * It shall thereupon be the duty of the court to specify a time, not exceeding twenty days after the service of the copy of the petition, within which the public utility complained of must answer the petition, and in the meantime said public utility may be restrained. In case of default in answer, or after answer, the court shall immediately inquire into the facts and circumstances of the case. Such corporations or persons as the court may deem necessary or proper to be joined as parties, in order to make its judgment, order, or writ effective, may be joined as parties. The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that the writ of mandamus or injunction issue or be made permanent as prayed for in the petition, or in such modified or other form as will afford appropriate relief. Any appeal may be taken to the supreme court from such *535 final judgment in the same manner and with the same effect, subject to the provisions of this title, as appeals are taken from judgments of the district court in other actions for mandamus or injunction.” ' "a1 It is the contention of the defendant that the public utilities commission is without authority to initiate a proceeding such as this in the district court without having first determined, in a proceeding before itself, that the person or corporation complained of is engaged in operating a public utility and is violating some order of the commission. Defendant’s contention in such respect is untenable. By the public utilities act it is made the duty of the commission “to see that the provisions of the constitution and statutes of this state affecting public utilities * * * are enforced. * * * Whenever * * * any public utility is failing or omitting, or about to fail or omit, to do anything required of it by law :|: * * sit [the public utilities commission] shall direct the commencement of an action or proceeding in the district court * * * in the name of the state, for the purpose of having such violations or threatened violations stopped 'and prevented, either by mandamus or injunction.” Sections 4839, 4842. Thus, if the defendant at the time complained of was operating a public utility in this state contrary to law, the commission not only had the authority but it was its duty to bring a proceeding in the district court to enforce a compliance with the law. Nor is there any provision in the act which requires that any proceeding be had before the commission prior to the commencement of an action or proceeding before the district court. The act provides that an action or proceeding either for a writ of mandamus or writ of injunction shall be commenced- in the district court “whenever the commission shall be of the opinion that any public utility is failing or omitting or about to fail or omit, to do anything required of it by law,” etc. There is no language in the act which will bear the construction contended for by the defendant that the commission, before an action or proceeding is commenced in *536 the district court must hold a hearing before itself to determine whether or not the party complained of was engaged in operating a public utility at the time charged in the complaint. Such a hearing would be a useless proceeding, because obviously the determination of such fact by the commission would not be binding on the district court. If the commission were of the opinion that the defendant was operating a public utility at the time charged in the complaint, there was no occasion for holding a hearing to confirm such opinion. This court has heretofore entertained jurisdiction and reviewed cases similar to this case where the proceeding was commenced and prosecuted in the same manner as this proceeding was commenced and is being prosecuted. Public Utilities Commission v. Jones, 54 Utah 111, 179 P. 745; Public Utilities Commission v. Garviloch, 54 Utah 406, 181 P. 272; State ex rel. Public Utilities Commission v. Nelson, 65 Utah 457, 238 P. 237, 42 A. L. R. 849. While the opinions in those cases do not discuss the question of authority or lack of authority of the commission to initiate and prosecute those proceedings in the manner in which they were initiated and prosecuted, none the less such question was involved in those proceedings. Had this court believed that the commission was without authority to initiate and prosecute those proceedings in the manner that they were initiated and prosecuted, it would have been proper for this court sua sponte to have dismissed the proceedings without regard to the merits of the controversies involved. A more serious question is presented when the amended complaint is considered with respect to the question of its sufficiency to state a cause of action. The language of section 4818, above quoted, applies to persons and corporations engaged in transporting passengers and freight for compensation by means of automobile or motor stage on public streets, roads, or highways along “established routes” within this state. Public Utilities Commission v. Garviloch, supra; Comp. Laws Utah 1917, § 4782, subd. *537 13. It will be noted that there is no averment of any fact in the amended complaint upon which the plaintiff elected to stand, from which it can be said or inferred that the defendant, at the time complained of, operated an automobile along an “established route” or any part thereof. Is the averment of such fact necessary to state a cause of action? We are of the opinion that the question must be answered in the affirmative. It was clearly within the province of the Legislature, within constitutional limitations, to determine what shall constitute an automobile corporation within the meaning of the act. The public utilities ■act does not require that all persons and corporations shall secure a certificate of convenience and necessity from the public utilities commission before engaging in transporting passengers or freight for compensation by automobile over the public highways of this state. The act applies only to automobile corporations as defined in the act. To be an automobile corporation within the meaning of the act, a person or corporation must be engaged in operating an automobile for the transportation of passengers or freight for compensation over public roads, streets, or highways along an “established route.” It thus becomes of controlling importance to determine what the Legislature meant by the words “established routes.” The complaint alleges that the defendant “has undertaken to operate and is now operating for public service within the state a freight truck line, and in so doing is carrying freight and merchandise for hire and for compensation over the public highways of this state between Salt Lake City, Salt Lake County and Vernal, Uintah County, Utah, by way of Duchesne, Duchesne County, Utah, serving points within said basin without having received from said commission a certificate of convenience and necessity or permit or without authorization so to do, and in violation of the provisions of Title 91, Comp. Laws Utah 1917, and amendments thereto.” The amended complaint thus apparently proceeds upon the theory that the defendant by his alleged illegal act of transporting freight *538 for compensation along the public highways of this state, between Salt Lake City and Uintah Basin, has established a route between those two points within the meaning of the public utilities act. The word established is defined by lexicographers to mean “to make stable or firm, to fix immovably or firmly, to set in a place and make stable there, to settle, to confirm, to appoint or constitute for permanence, to enact, to ordain, to originate and secure the permanent existence of, to found, to institute, to create and regulate.” Webster’s New International Dictionary. See, also, M. W. Dickey v. Maysville, Washington, Paris, & Lexington Turnpike Road Co., 37 Ky. (7 Dana) 113. It would seem reasonably clear that an established route must be a route that has a legal existence. One who merely uses the public highways for the transportation of freight for compensation cannot be said to have established a route. The authority to create, designate, permanently fix or establish a route, as defined in the public utilities act is by that act lodged in the commission and not in those who choose to use the public highways for the transportation of freight for compensation. It cannot well be said that a route along a public highway can be established by acts which are prohibited by law, nor by the acts of private persons or corporations. A route has a legal existence only when established by authority of law. The public utilities commission, and it alone, is granted power to establish routes for public utilities. Prior to the enactment of the public utilities law there was no distinction between the right of one to use the public hig'hways of this state for the transportation of freight or passengers for compensation and the right of one to use the public highways to transport freight and passengers without compensation. It is apparent, from reading the public utilities act, that the Legislature by the act intended to secure better public service from public utilities and that such service should be rendered for a reasonable compensation. It is quite improbable, however, that the Legislature intended1 to deprive any portion of the *539 population of the state from the benefits of public service for the transportation of freight and passengers, even though such service should not be regulated by the public utilities commission. It may be that the Legislature believed that in the outlying and sparsely settled portions of the state, the amount of business in transporting passengers or freight by means of automobile is so meagre that no one would go to the trouble and expense of complying with the rules and regulations of the commission, and yet the inhabitants of such portions of the state should not be deprived of public automobile service. Be that as it may, the fact remains that by the language used in the public utilities act, the Legislature limited the operation of the act, so far as automobile transportation is concerned, to those persons and corporations who engaged in carrying passengers or freight for compensation along “established routes.” The views herein expressed are in accord with and are supported by the conclusions reached by this court in the case of Public Utilities Commission v. Garviloch, supra. In that case the defendant Garviloch was engaged in operating a public utility without a certificate of convenience and necessity from the public utilities commission. The commission sought to enjoin Garviloch from transporting passengers for compensation by means of an automobile. The injunction was denied because it did not satisfactorily appear that Garviloch was engaged in transporting passengers in competition with one Eugene Chandler who held a certificate of convenience and necessity from the public utilities commission. Obviously, if an injunction will not issue unless it be established by the evidence that the person complained of has been or is about to engage in transporting passengers or freight in competition with one who holds a certificate of convenience and necessity from the commission, a complaint which does not allege such fact fails to state a cause of action. The judgment appealed from is affirmed. *540 CHERRY, C. J., and STRAUP and EPHRAIM HANSON, JJ., concur.