Opinion
6-22-1953
PEOPLE v. CALIFORNIA CENTRAL AIRLINES. * Civ. 19332.
Everett C. McKeage and J. Thomason Phelps, San Francisco, for appellant. John W. Preston, Jr., Los Angeles, for respondent.
PEOPLE
v.
CALIFORNIA CENTRAL AIRLINES. *
June 22, 1953.
Hearing Granted Aug. 6, 1953.
Everett C. McKeage and J. Thomason Phelps, San Francisco, for appellant.
John W. Preston, Jr., Los Angeles, for respondent.
DRAPEAU, Justice.
The State Public Utilities Commission, proceeding in the name of the People, seeks to collect a penalty from defendant pursuant to the terms of section 2107 of the Public Utilities Code, to-wit:
'Any public utility which violates or fails to comply with any provision of the Constitution of this State or of this part, or which fails or neglects to comply with any part or provision of any order, decision, decree, rule, direction, demand, or requirement of the commission, in a case in which a penalty has not otherwise been provided, is subject to a penalty of not less than five hundred dollars ($500) nor more than two thousand dollars ($2,000) for each offense.'
The complaint alleges the jurisdiction of the commission over intrastate rates, fares, charges and tariffs of all transportation companies, common carriers and public utilities operating within the State of California.
It also alleges that defendant is a transportation company, a common carrier and a public utility within the contemplation of Article XII of the State Constitution and of the Public Utilities Code, as amended;
That ever since January 1, 1949, to and including May 8, 1951, the rates, fares, charges and tariffs set forth in defendant's Tariff No. 1 were the lawful rates applicable to air coach service between Los Angeles and San Francisco;
That effective May 9, 1951, said commission by its decision of April 24, 1951, reported in 50 Cal. P.U.C. 563, authorized defendant to increase its passenger rates for that service;
That without prior or any authorization, permission or consent of the commission, defendant put the increased rate into effect on March 1, 1951, which it continued to charge up to and including May 8, 1951, a period of 69 days, thereby incurring a penalty to the State of California, to wit: $2,000 for each day's violation of section 2107, supra, a total of $138,000.
A general demurrer to the complaint was sustained without leave to amend. From the judgment which followed, the People appeal.
Appellant urges that the complaint herein states sufficient facts to constitute a cause of action. This for the reason that Article XII of the California Constitution 'contains absolute, unqualified prohibitions directed to all transportation companies.' Also, that all doubt of respondent's legal status as a transportation company, common carrier and public utility within the meaning of sections 20 and 22 of said article have been removed by the commission's decision in 50 Cal.P.U.C. 563, as to which a petition for review was denied by the Supreme Court (37 A.C. 633.)
That proceeding was 'an investigation upon the Commission's own motion into the reasonableness, lawfulness and propriety of the fares, rules, regulations, charges, services, operations and practices of respondent air lines for the transportation of passengers between the San Francisco Bay area and the Los Angeles area. * * *
'This investigation was instituted by the Commission upon receipt of information that fares were being assessed for so-called 'coach' transportation in excess of those named for such service in the tariffs on file with the Commission.' (50 Cal.P.U.C. 563, 564-565.)
It is pointed out in said opinion of the commission that on March 1, 1951, the respondent, Western Air Lines, Inc., and United Air Lines, Inc., were collecting the increased fare for coach service and that prior to that date, all three companies had filed with the commission applications for authority to make the fare increase. At the hearing the companies challenged the commission's power to regulate the activities and business of air transportation companies, contending that 'the increase was made in response to a request by the chairman of the Civil Aeronautics Board, which request the companies construed as tantamount to a demand. * * * The record in this proceeding is clear that the $11.70 fare was developed, recommended and in fact urged upon the carriers, by that Board.'
The final outcome of the hearing before the commission was the latter's approval of the increased rate theretofore approved by the Civil Aeronautics Board and which the airlines had been charging since March 1, 1951. The commission's order was dated April 24, 1951 and its effective date was specifically stated to be May 9, 1951.
In Sale v. Railroad Commission, 15 Cal.2d 612, 104 P.2d 38, 40, our Supreme Court said: 'It is true that the commission's decisions and orders ordinarily become final and conclusive if not attacked in the manner and within the time provided by law. (Citations.) This is not to say, however, that such a decision is res judicata in the sense in which that doctrine is applied in the law courts. Stratton v. Railroad Comm[ission of State of California], 186 Cal. 119, 127, 198 P. 1051.'
In the Stratton case it was stated: 'The peculiar effect of a determination of fact operating to conclude the question for other purposes than those of the very proceeding in which the determination is made is confined to strictly judicial determinations alone, and an order of the Commission is not of that character.' [186 Cal. 119, 198 P. 1055.]
On this phase of the case, appellant argues: 'Whether or not the above cited decision of the Commission is res judicata upon the question of respondent's status, there can be no doubt that it firmly establishes the proposition that a carrier of passengers by air whose services are held out to the public generally, for compensation, and which operates intrastate in California, is a common carrier, a transportation company, and a public utility within the meaning of Article XII of the Constitution.'
At the hearing before the commission, the only issue was the propriety of an increase in passenger fares. Here, the State of California is attempting to exact a penalty under section 2107 of the Public Utilities Code. As a result, respondent is not precluded by the prior administrative rate decision from raising jurisdictional issues in the instant case.
Since the common law did not recognize administrative bodies, the jurisdiction of the Public Utilities Commission must necessarily be derived from the Constitution and statutes of this state: specifically Article XII, sections 17 to 24, inclusive, of the Constitution, the Public Utilities Act of 1911, as amended, and the Public Utilities Code enacted in 1951.
Section 17 of Article XII provides: 'All railroad, canal, and other transportation companies are declared to be common carriers, and subject to legislative control.'
Section 20 thereof prohibits any railroad or other transportation company from raising rates except upon a showing before the commission that such increase is justified.
Section 22 gives the commission the power to establish rates for transportation of passengers and freight by railroads and other transportation companies. In addition it provides: 'No provision of this Constitution shall be construed as a limitation upon the authority of the Legislature to confer upon (the commission) additional powers of the same kind or different from those conferred herein which are not inconsistent with the powers conferred upon (it) in this Constitution, and the authority of the Legislature to confer such additional powers is expressly declared to be plenary and unlimited by any provision of this Constitution.'
Section 23 of Article XII, supra, specifically enumerates the kinds of public utilities under control of the commission; every common carrier is declared to be a public utility, 'subject to such control and regulation by (the commission) as may be provided by the Legislature, and every class of private corporations, individuals, or associations of individuals hereafter declared by the Legislature to be public utilities shall likewise be subject to such control and regulation. * * * and the right of the Legislature to confer powers upon (the commission) respecting public utilities is hereby declared to be plenary and to be unlimited by any provision of this Constitution.'
Section 24: 'The Legislature shall pass all laws necessary for the enforcement of the provisions of this article.'
Respondent urges that the provisions of Article XII, supra, are not self-executing, and that action by the Legislature was and is necessary in order to give the commission jurisdiction over air transportation companies. Further, that jurisdiction to fix and establish rates, fares, rules and regulations of an intrastate air transportation company has not been conferred upon the commission by statute.
The Public Utilities Act, 2 Deering's Gen.Laws, Act 6386, enacted to implement the constitutional provisions hereinbefore referred to, provides that the term 'common carrier' includes every railroad, street railroad, and express corporation; every freight forwarder, dispatch, sleeping-car, dining car, drawing-room car, freight, freight line, refrigerator, oil, stock, fruit, car loaning, car renting, car loading and every other car corporation, section 2(l); every passenger stage corporation, section 2 1/4(d); every highway common carrier, section 2 3/4(e).
Said act also provides that the term 'public utility' includes every common carrier, toll bridge corporation, pipe line corporation, gas corporation, electrical corporation, telephone corporation, telegraph corporation, water corporation, wharfinger, warehouseman and heat corporation. Section 2(dd).
Neither in the constitutional provisions nor in the enabling acts is any mention made of air transportation.
In view of the precise particularity used in denoting the types of businesses sought to be regulated, the Legislature must be deemed to have intentionally excluded air transportation companies from operation of the Public Utilities Act. In other words, the jurisdiction of the commission extends only to such common carriers and public utilities as are specifically designated in the statute.
Our Supreme Court in the case of In re Martinez, 22 Cal.2d 259, 138 P.2d 10, had occasion to pass upon the question of the jurisdiction of the Railroad Commission, now Public Utilities Commission, over common carriers of a kind which were not specifically described in the constitution or specifically provided for by the legislature.
In that case petitioner had been convicted in a city police court for violating a municipal ordinance regulating the fixing of taxicab fares. Petitioner sought release on a writ of habeas corpus, contending that the ordinance was unconstitutional because the exclusive power to fix such rates was vested in the commission.
It was there held that the commission must first be given a specific legislative mandate to act before it could exercise jurisdiction over a particular class of common carrier.
It was there stated, 22 Cal.2d at page 261, 138 P.2d at page 11, that petitioner's contention 'entirely disregards that portion of the quoted constitutional provision [section 23 of Article XII] which declares that the public utilities therein defined (including common carriers) shall be 'subject to such control and regulation by the Railroad Commission as may be provided by the Legislature.' The section further provides that 'The Railroad Commission shall have and exercise such power and jurisdiction to supervise and regulate public utilities * * * and to fix the rates to be charged for * * * services rendered by public utilities as shall be conferred upon it by the Legislature * * *.' (Italics ours.)
'The italicized language is clear in its declaration that only such of the utilities therein designated, including common carriers operating within a municipality, may be regulated by the Railroad Commission as are made subject to such regulation by legislative enactment. In other words, while a taxicab is a common carrier (code § supra [sec. 2168, Civ.Code]; Bezera v. Associated Oil Co., 117 Cal.App. 139, 143, 3 P.2d 622; 45 A.L.R. 300) and section 23 of article XII of the Constitution declares every common carrier to be a public utility, the constitutional section further expressly declares that the public utilities therein designated shall be subject to such control and regulation by the Railroad Commission 'as may be provided by the Legislature.' To determine whether taxicabs and the rates thereof are subject to the jurisdiction of the Railroad Commission we must therefore look to the statutes enacted by the Legislature. * * *
'Nowhere in the quoted provisions of the Public Utilities Act, nor in its other provisions, do we find any reference to taxicabs or taxicab companies. Each of the many agencies designated in subdivisions (dd) and (l) is specifically mentioned and described in detail or is included in groups carefully described in the act. If the Legislature had intended to include taxicabs it would not have omitted reference to them while including detailed descriptions of all other agencies covered by the act, some of which perform similar services. Moreover, references in other parts of the act to common carriers 'subject to the provisions of this act' indicate a legislative intention not to include all common carriers.'
By this decision the Supreme Court has reaffirmed the principle that the commission possesses no inherent power but only such jurisdiction as is specifically given to it. (See 33 C.L.R. 125.)
As a result, the commission has no jurisdiction over air transportation companies.
The judgment is affirmed.
WHITE, P. J., and DORAN, J., concur. --------------- * Subsequent opinion 268 P.2d 744.