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Show I I MONDAY, OCTOBER 8, 1973 r PAGE THREE THE DAILY RECORD In The Supreme Court Of The State Of Utah of the Certificate and Permit herein issued that the Mary A. Murphy, dba Alex Pickering Transfer Company, applicant shall render reasonably adequate and continuous service in pursuance of the authority herein granted, and that failure to do so shall constitute sufficient grounds for termination, change, or suspension of said Certificate and Permit. Plaintiff, In 1972, the Commission interpreted the 1954 order as contemplating the plaintiff would file contracts with the Commission designating the shippers for whom she would render a transportation service. Within the extended time limit, the only1 shippers for whom contracts were filed were Campbell Soup and Industrial Supply, the Commission concluded that after the expiration of the extended time limit, plaintiff could only contract with additional shippers after obtaining the assent of the Commission in accordance with Section 8, U. C. A. 1953. 54-6-- CALLISTER. Chief Justice; Plaintiff seeks review of an order of the Public Service Commission interpreting her authority to operate under a contract carrier permit. ' , This current conflict arose when plaintiff's business manager, after consultation with the Commission's attorney in charge of rate and schedule filings and hearings, filed a schedule of contract carrier rates to be effective on one day's notice on March 28, 1972. During' the month of April plaintiff filed two contracts,, both incorporating .plaintiff's schedule as to rates. These two contracts were with Certified Warehouse and General Electric, shippers plaintiff had not previously served. Under the last paragraph of Rule VII, the one day's notice applies to contracts establishing charges for new services. , At the hearing Keith Sohm, a commerce attorney for the Commission for twenty years, testified as to his knowledge of two types of contract carrier the order permits. In the one type, the shipper or shippers are designated in the before carrier the be to served by may concarrier; as being authorised a proof and a must have hearing tract with another shipper, the Commission of need must be made. The other type of permit, was characterised by the contract carrier authority, and no hearing is required witness as an open-en- d to ad nevi shippers under this type of authority. The witness knew of only two permits granting the latter type of authority, plaintiff's and one other. He could not recall ariy permits oi this type being issued in the past 20 years. Plaintiff contends that her permit grants her a general contract carrier authotity, unlimited as to any shipper and that the restrictive interpretation of her authority by the Commission cannot be sustained. She points out that there was no evidence to support the conclusion that the 154 order contemplated the restrictions as to shippers, and, therefore, her contract filings in 1972 were perfectly valid. carriers filed a petition to have plaintiff's permit declared null and void and to have her ordered to cease and desist from providing any transportation service under her permit. y Defendants sought and received a hearing date earlier than the usual On April 20, 1972, the defendant The interpretation of the permit in the instant case presents a 1 The extent of plaintiff's authority must be! fouWd'; question of law only. within the four corners of the permit, and the rights thereunder trust be such as are fairly understood from the import of its language. Unless there be some ambiguity or uncertainty, there is no basis for interpreto go behind the tation or clarification of the permit. It is impermissible 2 The instant case terms. language of the permit- and contradict its plain is distinguishable from Milne Truck Lines, Inc. v. Public Service Commission which was cited by the Commission in its order, for in the Milne case there were two possible interpretations of the term "general commodities" ' ten-da- notice, to which plaintiff objected. Following the hearing, the Commission ordered that the schedule filed by plaintiff on March 28, 1972, be suspended on the ground that the one day's notice filing was inappropriate. Plaintiff was further ordered to cease and desist rendering any transportation service pursuant to her permit except for service to two accounts, Campbell Soup and Industrial Supply Company, upon whom there were rates filed in December 1954. Plaintiff was further ordered to appear at a hearing to show cause why her contract carrier schedule filed in March, 1972-should not be permanently suspended and her contract carrier permit should not be altered or amended. - , as used in the grant of authority. Following the second hearing, the Commission issued an order, wherein it permanently suspended the carrier rate schedule previously filed in March' and ordered her to cease and desist rendering any trans-- . portation service pursuant to her permitexceptj toCampbell Soup Company. In its jftndingst'lie Commission quoted the language of plaintiff's permit and then concluded that the authority granted was limited to those shippers for whom contracts were filed in 1954. In order to serve additional shippers, plaintiff must file a notice, have a hearing and a determination by the Commission that the application met the requisites specified in Section U. C. A. 1953. The Commission further concluded that plaintiff's failure to render reasonably adequate and continuous service for Industrial Supply constituted a forfeiture of the right to reinstitute service without demonstrating the service was necessary or plaintiff was not 're sponsible 54-6-- 8, for the failure to give service; plaintiff had not made either of the necessary, the Comproofs. Following the denial of plaintiff's petition for rehearing by mission, she sought review before this court. In the instant case, the order of 1954 clearly granted a general contract carrier permit, which was described by Justice Wolfe in a conCommission4 as not limited curring opinion in McCarthy v. Public Service to a particular contract or for hauling for a particular person. The condition in the permit from which the Commission constructed the challenged J " : r restriction, nhmely, that plaintiff file her contracts with respect ter tb was and regulations, permits, in accordance with the Commission's rules each contract that rule VII. This Rule with provides merely in accordance file one shall the to act, carrier of property by motor vehicle, subject the charges copy of each and every contract existing and in force containing of such contract carrier for the transportation of property in intrastate commerce. The rule further provides that the contract so filed shall be in lieu of any schedule theretofore filed and shall cancel any such schedule. The condition of the provision, as fairly understood from the import of the the language, was that plaintiff must file her existing contracts containing be which no interpreted may language charges for her services. There is as restricting the general contract carrier authority granted in the prior of the order to the contracts filed; the Commission erred in so paragraphs concluding. The basic issue of this case is what type of authority was granted to . 54-6-2- 4, 50-mi- le IT IS FURTHER ORDERED, That Contract Carrier Permit No. 130 be and the same is hereby transferred, as herein modified, to Mary A. Murphy, doing business as a contract motor carrier of all kinds of personal property and other property which including merchandise, machinery, she has occasion to carry in the course of the conduct of her said transportation business within a 50 mile radius of Salt the Lake City, excluding pickup arid delivery service within area described in Certificate of Convenience and Necessity No. 684. ' ' 'r IT IS FURTHER ORDERED, That the above described Certificate and Permit shall become effective twenty (20) the condition that applicant days from the date hereof upon with files the necessary insurance and tariffs or contracts with the Commission's respect to the permits, in accordanceto file insurance and failure rules and regulations. Upon the tariffs within twenty (20) days after date of this order, and null certificate and permit herein issued shall become void. IT IS FURTHER ORDERED, and is made a condition ' ' ' : J' Since the restrictive' interpretation of the plaintiff's grant of authority otter . by the Commission is erroneous, the order is vacated. Plaintiff's heir of s' court' this interpretation points in her brief become moot under authority. No costs awarded. d plaintiff in her contract carrier permit, i. e., does she have an open-ennew shippers withcontract carrier authority whereby she may contract with out a hearing or is her authority limited to specific shippers with whom she had contracts in 1954 and to enter into new contracts 6he must show a need for the service and that the existing' service is inadequate. Plaintiff is the widow of John M. Murphy, who was granted Contract Carrier Permit No. 130 on May 16, 1936, wherein he was authorized "to of Utah as a contract operate on and over all of the highways of the State of motor carrier of all kinds personal property including merchandise, to carry in the course , machinery and other property which he has occasion " Upon John's death, his of the conduct of his said transportation business. wife Mary applied for a transfer of his permit to her as provided in Section U.C.A. 1953. Upon notice and hearing, the Commission ordered such transfer with the limitation that the business was to be conducted withradius of Salt Lake City, the area the Commission specifically in a found where the permit was being operated by John Murphy at the time of his death. The order of the Commission also transferred a Certificate of Convenience and Necessity to plaintiff and some of the provisions in the order refer to both the certificate and the permit. The order provided: ' WE CONCUR: F. Henri Henriod, Justice - R. L. Tuckett, Justice A. H. Ellett. Justice Comm. Service v. Co. Public r 3 Utah 2d 7, 10, 277 P. 2d 1. W..S. Hatch 109 (1954). P. 2d 497 1, Peterson v. Public Service .Comm., 1 Utah 2d 324, 327, 266 8 2d 401, Utah Truck v; Inc., Co. Transfer. Barton Lines, Lake 1954); Salt ' ; 2d 829 335 P. (1959). 104, 2d 72, 368 P. 2d 590 (19621. I. 13 - - - Utah MQQ CROCKETT. IDA D IQA7 Justice; (Dissent) The thesis upon which the plaintiff must prevail in order to reverse the order of the Commission is stated as point 1 of her brief, that: The Commission erred in not ruling plaintiff holds general contract carrier authority, unlimited as to any shipper. There are two propositions which stand as insuperable obstacles to the position thus contended for by the plaintiff. The first is this proposition conof law: There is no basis whatsoever in law for any such "open-end'this The second is contends profor. as tract carrier authority the plaintiff she that shown not has the plaintiff position of fact: That even if there were, in fact has any such authority, nor even any reasonable semblance thereof. V The plaintiff's position is that she (actually her successor Max W. Young to whom plaintiff had entered into an agreement to sell the operating rights, and who is in fact operating the business) has the right to file and haul under new contracts without the approval of the Commission. There is not cited nor does this writer believe there can be found any statutory or contract carrier authority. decisional authority to support any such "open-end- " On the other hand, it is contrary to the statutory and decisional law dealing with the distinctions between the common carrier as contrasted to the contract carrier. To say or to conclude that a contract carrier has an "open-end- " is simply a contradiction in terms. By. whatever title he may be authority i i I i |