Oregon Short Line Railroad v. Garrett Transfer & Storage Co.

23 P.2d 739, 53 Idaho 200, 1933 Ida. LEXIS 136

• Court: Idaho Supreme Court
• Decided: May 26, 1933
• Docket: No. 5966.
• Status: Published

Opinions

GIVENiS, J.

The Garrett Transfer & Storage Co. applied to the Public Utilities Commission for a permit, under the provisions of see. 59-803, I. 0. A., to operate or extend its motor bus lines between Idaho Falls, Idaho, and Butte, Montana, by way of Roberts, Hamer and Dubois. The application was contested by the Oregon Short Line Railroad Company, and the only point involved is whether the Public Utilities Commission, in granting the permit, should have considered the provisions of secs. 59-526, 59-527, 59-528, I. C. A., it being the contention of the protestant railroad company that by sec. 59-817, I. C. A., it is necessary for the commission to consider those things pertinent to the granting or refusal of a certificate of convenience and neces sity in issuing a permit to an auto transportation company, as defined and covered by chap. 8, title 59, I. C. A.

The determination of this matter involves the consideration of the enactment of chap. 8, which originated as chap. 267, Sess. Laws of 1929. The legislative record shows that the original House Bill 271 required, as a condition precedent to an auto transportation company doing business, the issuance of a certificate of convenience and necessity, but that the Senate, March 5, 1929, as shown by its Journal, pages 377-379, of which the court takes judicial notice (State v. Eagleson, 32 Ida. 280, 181 Pac. 935), by amendment, eliminated the provisions with regard to a certificate of convenience and necessity and required the issuance of only a permit. Such elimination has been considered by this court to indicate that the legislature intentionally omitted such provision. (In re Segregation of School Dist. No. 58, 34 Ida. 222 at 227, 200 Pac. 138. See, also, Rieger v. Harrington, 102 Or. 603, 203 Pac. 576; State v. Wibaux County Bank, 85 Mont. 532, 281 Pac. 341; State v. Hays, 86 Mont. 58, 282 Pac. 32; Samples v. Board of Commrs., 87 Colo. 227, 286 Pac. 273.)

Protestant, however, contends that sec. 59-817 shows that the legislature intended not only to include, by reference, the provisions with regard to a certificate of convenience and necessity, but all other provisions of the general Public Utilities Law, chapters 1 to 7 of the above title, the language used being that “all provisions of the public utilities law . . . . shall, in so far as applicable, apply to all motor propelled vehicle carriers subject to the provisions of this chapter. ’ ’

In the first- place, sec. 59-802 provides that it shall be unlawful for any “motor carrier,” as the term is defined in the chapter, to operate without a permit. Sec. 59-817 also uses the words “motor propelled vehicle,” which, however, is nowhere defined in chap. 8. The term “auto transportation company” is defined, and we assume that is what the legislature meant by “motor propelled vehicle.”

It will be noticed, however, that the word “permit” is used and not “certificate,” and that the Senate struck from the title of the original bill the words “certificate of convenience and necessity,” and inserted in lieu thereof the word ‘ ‘ permit. ’ ’

This court, construing the phrase “in so far as applicable,” in a situation similar to that considered herein, has held that where one statute refers to another and makes the same a part of the former in so far as the same is applicable, in determining what provisions are applicable, the court is called upon to construe into the former as a part thereof only such provisions of the latter as are applicable and will give force and effect to the former statute. (Gillesby v. Board of Canyon County Commrs., 17 Ida. 586, 107 Pac. 71, and followed, to the same effect, in Hodges v. Tucker, 25 Ida. 563, 138 Pac. 1139.)

Turning now to secs. 59-526, 59-527 and 59-528, I. C. A., a certificate of convenience, by the original Public Utilities Law, was required only for a street railroad corporation, gas corporation, electrical corporation, telephone corporation or water corporation. These various organizations as defined by sees. 59-108, 59-109, 59-116, 59-117, 59-118, 59-119, 59-120, 59-121, 59-124 and 59-125, I. C. A., show that the only carrier of persons and things required to secure a certificate of convenience and necessity was a street railroad, which term, by sec. 59-108, expressly did not include a railway constituting or used as a part of a commercial or interurban railway, and subdivision e of sec. 59-801, defining the term “auto transportation company,” expressly excluded from the scope of chap. 8, hence of chaps. 1 to 7, title 59, I. C. A., an auto transportation company operating exclusively within the limits of any incorporated city or village or territory contiguous to such city or village, thus positively indicating that an auto transportation company was not considered as in any way similar to a street railway company. Therefore, by a comparison of these statutory provisions it is apparent that the language used excludes from the scope of a certificate of convenience and necessity, so far as the transportation of things and people are concerned, any utility or common carrier not operating as a street railway company, and thereby the terms of sees. 59-526, 59-527 and 59-528 would not be applicable to an auto transportation company operating within the terms of chap. 8.

Protestant relies upon Maine Motor Coaches v. Public Utilities Commission, 125 Me. 63, 130 Atl. 866, and Northern Pacific Ry. Co. v. Bennett, 83 Mont. 483, 272 Pac. 987, in support of its contention. These cases, however, are not applicable because of the difference in the statutes there construed and here considered. In the Maine case, so far as we have been able to discover, from an examination of its general public utilities statute, Rev. Stats, of Maine, 1930, chap. 62, p. 1024, and the various public laws referred to in the decision, the general statute .did not require any certificate of convenience and necessity, and the Maine court construed the word “permit,” in the special jitney act, to mean “certificate of convenience and necessity.”

Northern Pacific Ry. Co. v. Bennett, 83 Mont. 483, 272 Pac. 987, did not pass upon any such legislative enactment as we have herein.

The legislature having the authority to designate those carriers or utilities which must secure from the Public Utilities Commission a certificate of convenience and necessity before beginning operations, the plain wording of the statutes involved indicates, by the applicable rules of statutory construction (Empire Copper Co. v. Henderson, 15 Ida. 635, 99 Pac. 127; Swain v. Fritchman, 21 Ida. 783, 125 Pac. 319; Turner v. Roseberry Irr. Dist., 33 Ida. 746, 198 Pac. 465; In re Segregation of School Dist. No. 58, 34 Ida. 222, 200 Pac. 138; State v. Jutila, 34 Ida. 595, 202 Pac. 566; Drainage Dist. No. 2 v. Ada County, 38 Ida. 778, 226 Pac. 290; State v. Armstrong, 38 Ida. 493, 225 Pac. 491, 33 A. L. R. 835), that the legislature did not intend secs. 59-526, 59-527 and 59-528 to apply to auto transportation companies; therefore the Public Utilities Commission did not- err in refusing to consider evidence relative thereto herein.

(July 12, 1933.)

The order is sustained. Costs to applicant.

Budge, C. J., and Morgan, Holden and Wernette, JJ., concur.