BARBOUR v. WALKER
1927 OK 253
259 P. 552
126 Okla. 227
http://www.oscn.net/applications/osc...p?CiteID=50096
In the trial of the case plaintiffs contended that as holders of certificates of public convenience and necessity they were entitled to injunctive relief; that chapter 113 was broad enough to, and did include, all persons operating motor trucks for hire in the manner alleged, whether such persons were engaged as common carriers or as private carriers. Defendants contended that the act does not regulate private carriers not engaged as common carriers. The judgment of the court in granting the temporary injunction was in effect a determination that defendants were in fact motor carriers within the meaning of chapter 113, and were thus subject to control and regulation thereby.
5 In this court defendants, for reversal of the judgment, contend, first, that they are private carriers, and that as such they are not within the purview of chapter 113, S. L. 1923; and second, that if said chapter 113 is operative as to them, the said act is unconstitutional and void as in violation of their rights under the 14th Amendment to the Constitution of the United States, and under section 7 of article 2 of the state Constitution. We will consider these contentions together, as they may be properly resolved into the one general proposition, namely, that defendants have the right as private motor carriers to the use of the public highways of the state for private enterprise and profit without let, hindrance, or interference from the public authorities of the state.
6 The constitutionality of chapter 113 has heretofore received consideration by this court in the case of Ex parte Tindall, 102 Okla. 192, 229 P. 125. The law was there challenged on the identical grounds here relied on. Upon a thorough analysis of the act, which need not here be reiterated, its validity was sustained. In addition to what was there said as to the purpose and necessity of the law, we may here well observe that, prior to the advent of automotive power, regulation of the use of the public highways was not essentially required, as no phase of the public welfare was either inconvenienced or exposed to danger as now, though they were used for both common travel and private gain, particularly between points where there were no railroad facilities. Construction and maintenance of the highways then were left to county and township organizations with the financial means therefor raised largely, if not altogether, by local taxation. Public use thereof was not as marked then as now, for the traveling public found it convenient to pass to their destination by means of travel by rail rather than by the horse power vehicle. With the advent of the automobile our mode of travel was transformed in less than a decade. This transformation required a change in our system of highway construction from that of the ordinary improvised dirt roads to that of highly improved and hard surfaced roads. This accelerated the establishment of our State Highway Department whereunder we are now expending millions of dollars annually to meet the requirements of the traveling public. Speed laws were found to be necessary to maintain order and to minimize danger in the use of the highways. In addition to the primary purposes, that of accommodation of the traveling public in the common acceptation of the term, utilization of our highways, constructed and maintained at large public expense, by transportation thereover of both passengers and property for private gain developed even between points where railroad facilities were available, and on that scale where regulation of the use of our highways for private enterprise became a necessary function of government, for if not so regulated appropriation thereof for private purposes would eventually place the public in the position of furnishing the highways for private enterprise rather than for the public purposes for which they were established.
7 To obviate this condition rapidly materializing, the Legislature in its wisdom in protection of the public welfare enacted chapter 113, and other provisions of law not here necessary to notice. The law is based upon the theory that the individual citizen has no vested right to use the highways of the state for private enterprise to the detriment of the general public, and that where the individual interest conflicts with the public interest, as must be the necessary result in the use of the public highways for private purposes without regulation, the government is never impotent to protect the public welfare. The principle applied in the regulation of the use of the highways for private enterprise rests upon public convenience and public necessity, a principle recognized and in a large degree applied by the national government in placing the control and regulation of the railroads of the country in the hands of the Interstate Commerce Commission. Title 49, Transportation, chapter 1, sec. 1, U.S.C. 1926, 44 Stat. 1649.
8 It was upon this theory and the application of this principle that this court in Ex parte Tindall held that the state was within the rightful exercise of its police power in the regulation of the use of the highways in sustaining the constitutionality of the law here again challenged, and denied that it in anywise was in contravention of either the 14th Amendment to the federal Constitution as in abridgment of any right or privilege of the citizen, or in deprivation of property without due process of law, or in denial to the citizen of the equal protection of the law; or of section 7, article 2 of the state Constitution on the same subject. It was there also held that the real purpose of the act was "to regulate the use of the public highways by transportation companies" through "the regulation and control of motor vehicles operating as common carriers for hire and profit over the public highways," and that:
"The operation of motor vehicles, for the purpose of carrying passengers and freight, for hire and profit over the public highways as a transportation roadbed, is a 'public service enterprise' within the constitutional definition of such an enterprise, and as such, subject to regulation and control by the state."
9 In addressing itself to the administration of the law through the State Corporation Commission charged therewith, of which it was also complained was the lodgment of arbitrary power with the Commission, the court used this language:
"It would be impossible for the Commission, acting under such act, to grant a special privilege detrimental to the interests of the public, or to create a monopoly with like effect. The public has a voice in the enforcement of this act and the right to speak whenever its interests are not subserved. It has a right to say that no person or corporation shall use its public highways as a transportation line for hire; it has a right to say that any one who may be permitted to operate over such lines in such manner must have a license to do so, and has a voice as to whether its necessities and convenience require that one, two, or three shall be licensed to render the required service, or that none is required. It might be a material benefit to the public to have one transportation line over a given highway, and a substantial detriment to have more than one, hence the limit to the number is determined by the public needs. It is not that the petitioner or any other private concern has a vested right or any right to appropriate the public highways to its own free use and benefit for profit, but that the public, from the standpoint of its convenience and necessities, as well as from the standpoint of property rights in the public highways, may demand a 'public service' if it needs it, or reject it if it is not needed, and a voice as to how much of such service it needs and the conditions under which it may be rendered, and no private rights are paramount to the public good."
10 In Ex parte ****ey, 76 W. Va. 576 85 S.E. 781, L.R.A. 1915F, 840, we find this apt expression of the court:
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