Berry Transport, Inc. v. Heltzel , 202 Or. 161 ( 1954 )

TOOZE, J.

This is an appeal by the plaintiff, Berry Transport, Inc., a corporation, from a decree affirming an order of the Public Utilities Commissioner of the state of Oregon, denying the application of plaintiff for a permit to conduct local cartage services in the city of Portland, as a common carrier.

Plaintiff is the holder of Oregon Public Utilities Commission permit number AF 37346-1, which authorizes the transportation of general commodities as a common carrier between points “within 50 road miles of Portland, Oregon, and from Portland or any point within 50 road miles thereof to any point in Oregon, and from any point in Oregon to Portland or any point within 50 road miles thereof.” Plaintiff and its predecessor have held such authority for approximately 20 years. Under such authority, since originally issued, plaintiff and its predecessor have engaged continuously in both intercity operations and local cartage operations in the city of Portland. The operations within the city of Portland have constituted about 50 per cent of the loads carried by the plaintiff and 30 per cent of the income from its total business within the state. The financial success of plaintiff’s business as a whole depends upon a continuation of its local cartage operations within the city of Portland. The motor vehicles of plaintiff have been continuously used interchangeably in the local cartage and intercity operations.

Three assignments of error are presented by plaintiff:

“No. 1. The trial court erred in concluding in effect that the plaintiff did not have authority to conduct local cartage operations in Portland and therefore was not required to file for a permit under Section 11, sub-section 1, Chapter 467, Laws of 1947; and

“No. 2. The trial court erred in sustaining the finding of the Commissioner that the application of plaintiff was not in the public interest; and

“No. 3. The trial court erred in sustaining the finding of the Commissioner that plaintiff was a habitual violator of the Motor Transportation Act, and hence, not a proper person to whom a permit could be issued.”

The view we take of this case renders unnecessary a discussion of assignments of error numbered 2 and 3. It is only with assignment of error numbered 1 that we are concerned.

To decide the issue presented by the first assignment of error requires the interpretation of subsection 1 of § 11, ch. 467, Oregon Laws 1947. That section provides:

“Section 11. 1. There shall he issued by the commissioner to persons not expressly excluded from the terms of this act and now owning and operating motor vehicles or trailers in for hire service exclusively within the incorporated limits of cities and towns in Oregon permits to operate as common or contract carriers within the incorporated limits of cities and towns in Oregon, conditioned that said carriers comply with this act and the laws of this state, and further conditioned that they malee application for said permit within 90 days after the effective date of this act. The issuance of permits to common carriers who do not hold permits as motor carriers under existing laws shall, except as hereinabove provided and as hereinafter provided in subdivision 4 of this section, he made; only after hearing had and showing made as required by the following subdivision 2 of this section 11.” (Italics ours.)

Prior to and at the time of the enactment of ch 467, Oregon Laws 1947, persons operating motor vehicles as carriers for hire wholly within the incorporated limits of a city or town were exempt from the provisions of the Motor Transportation Act. No permit for the conduct of such local cartage operations was required to be issued by the Public Utilities Commissioner of the state of Oregon. Section 1, ch 197, Oregon Laws 1945 (amending § 115-503, OCLA, as amended by ch 435, Oregon Laws 1941), provided in part as follows:

“No portion of this act, except this section * * *, shall apply to persons operating motor vehicles (a) when operated wholly within the limits of an incorporated city or town in which the original starting point of such vehicle is located and which operation either alone or in conjunction with another vehicle or vehicles is not a part of any journey beyond said limits; * * (Italics ours.)

The word “wholly” as used above is synonymous with the word “exclusively” as employed in §11 of the Act of 1947, supra.

At the time the Act of 1947 became effective, plaintiff’s permit embraced operations within the city of Portland, as well as operations between that city and other parts of the state. Of course, plaintiff’s permit was not specifically directed to local cartage operations, because no such permit was required, but it did include such transportation. The sole question for determination here is whether, under the terms of § 11 of the Act of 1947, plaintiff was a person “now owning and operating motor vehicles or trailers in hire service exclusively within the incorporated limits” of the city of Portland, and was, therefore, required to apply for a permit for the conduct of such local cartage operations.

In the construction of statutes, when construction is necessary or proper, the primary and governing rule to be followed and the one that is law and binding upon the court is to ascertain and declare the legislative intent. All other rules of statutory construction are secondary in importance and are simply guides to aid in the application of the primary rule. Rules for the construction of statutes are provided by law in this state.

Section 2-216, OCLA (OES 174.010), provides:

“In the construction of a statute * * *, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all.”

Section 2-217, OCLA (OES 174.020), provides:

“In the construction of a statute the intention of the legislature * # * is to be pursued if possible ; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it.”

In Swift & Co. and Armour & Co. v. Peterson, 192 Or 97, 108, 233 P2d 216, Mr. Justice Warner, speaking for the court, said:

“The cardinal rule for the construction of a statute is to ascertain from the language thereof the intent of the lawmakers as to what purpose was to be served, or what object was designed to be attained. Leonard v. Ekwall, 124 Or. 351, 359, 264 P. 463; Fox v. Galloway, 174 Or. 339, 346, 148 P. (2d) 922.”

However, it is only in cases where the language used in a statute is ambiguous and uncertain that resort may be had to rules of statutory construction in ascertaining and declaring the legislative intent. It is elementary that when the legislature, in enacting a law, makes use of plain, unambiguous, and understandable language, it is presumed to have intended precisely what its words imply. There is no occasion to go beyond those words and their plain meaning to ascertain by application of rules of statutory construction the legislative purpose. The words used speak for themselves.

In 82 CJS 571, Statutes, §322(1), it is stated:

“The intention of the legislature is to be ascertained primarily from the language used in the statute, irrespective of the fact that the phraseology of the statute may be awkward, slovenly, or in-artificial. Accordingly, the meaning of statutes is to be sought and ascertained from their language.”

And in 82 CJS 577, Statutes, § 322(2), it is further stated:

“Where the language of statute is plain and unambiguous, there is no occasion for construction, and this is true even though other meanings of the language employed could be found. The court cannot indulge in speculation as to the probable and possible qualifications which might have been in the mind of the legislature, or assume a legislative intent in plain contradiction to words used by the legislature, and need not search for the reasons which prompted the legislature to enact the statute.

“An unambiguous statute must be given effect according to its plain and obvious meaning, and such unambiguous statute cannot be extended beyond its plain and obvious meaning, or restricted to, or confined in operations within, narrower limits or bounds than manifestly intended by the legislature, because of some supposed policy of the law, or because the legislature did not use proper words to express its meaning, otherwise the court would be assuming legislative authority. In construing a statute expressed in reasonably clear language, the court should neither read in nor read out; * * *.” (Italics ours.)

In Fox v. Galloway, 174 Or 339, 347, 148 P2d 922, Mr. Justice Bailey, speaking for the court, stated the following rule as applied to statutes containing plain and unambiguous language:

“If the language used is plain and unambiguous, if it can be given but one meaning, and that meaning does not lead to an impossibility or an absurdity such as the legislature could not be supposed to have intended, the court must give effect to that meaning if constitutional, even though the result may be, in the court’s opinion, harsh, unjust or mistaken in policy * #

It is our opinion that subdivision 1 of § 11, ch 467, Oregon Laws 1947, supra, is couched in language that is plain, unambiguous, and understandable, and which clearly discloses the legislative intent.

The primary purpose of the Act is quite evident. The legislature simply intended to place . under the jurisdiction of the Public Utilities Commissioner intracity operations which had theretofore been exempt from the provisions of the Motor Transportation Act, persons engaged as carriers for hire who operated exclusively within a city and who had not theretofore been required to secure permits under the law.

The section of the law being considered concerns itself only with permits. It has nothing to do with license fees, tax rates, and other regulations and requirements of the Motor Transportation Act. It is clear that a person securing or holding a permit authorizing local cartage operations would be subject to the tax rates and other regulations provided under the law for such local operations, no matter when the permit was issued. The only question with which we are concerned is plaintiff’s right under its permit to operate in intracity transportation, not with the regulations and conditions governing such operations.

Until the enactment of 1947, persons operating motor vehicles for hire “wholly” within the limits of an incorporated city or town were not required to obtain a permit from the Public Utilities Commissioner. Upon the effective date of the 1947 Act, those persons who were then owning and operating motor vehicles for hire exclusively (wholly) within the limits of an incorporated city or town were required to secure a permit, the same as plaintiff and other common carriers for hire had theretofore been required to do, in carrying on their state-wide transportation activities, including their local cartage operations.

Under the provisions of the Act, those persons who had been operating exclusively within a city or town prior to the enactment and effective date of the law were entitled to be issued a permit as a matter of course, provided they applied therefor within the 90-day period. As to such persons, the issuance to them of permits was mandatory; the Public Utilities Commissioner had no discretion in the matter.

It is clear that plaintiff did not come within the class of persons described in the first sentence of the Act. It already held a permit, and its operations were not then, nor had they ever been, confined exclusively or wholly to local cartage operations within the limits of any incorporated city, although local cartage operations in the city of Portland had long been included in its state-wide business, and were fully authorized by its permit, and as to which local cartage operations (along with and as an integral part of its over-all operations as a common carrier), it was required to and did file rate, fare, and charge schedules (§ 115-506 (2), OCLA), make annual reports (§115-510, OCLA), and pay a tax of “one (1) mill per combined weight ton mile” (§115-517, OCLA).

The intention of the legislature is clearly demonstrated when we consider the language it used in writing the second sentence appearing in subdivision 1 of §11:

“* * * The issuance of permits to common carriers who do not hold permits as motor carriers under existing law shall, except as hereinabove provided * * *, be made only after hearing had and showing made * * *.” (Italics ours.)

It is plain from the foregoing that only common carriers who did not hold permits under the law as it existed at the time ch 467, Oregon Laws 1947, was enacted were required to apply for permits and were subject to the restriction that no such permits would be issued except after a hearing. The permits referred to by the term “except as hereinabove provided” meant the permits that were to be issued as a matter of course to applicants therefor who at the time were engaged exclusively in intracity operations.

Therefore, under subdivision 1 of § 11, special provision is made for the issuance of permits to two classes of common carriers: (1) those who had been and were then engaged exclusively in local cartage operations; and (2) those who did not hold permits as motor carriers which had theretofore been issued to them under the terms of the Motor Transportation Act. The law specifically required that they obtain permits, the one as a matter of course, the other only after a hearing. The language used in subdivision 1 as last above quoted is a clear recognition of the existence of permits which had theretofore been issued to some common carriers. As to such carriers so holding permits, no provision whatever was made for the issuance to them of other or additional permits, with or without a hearing. Manifestly, in dealing with the subject of permits, if the legislature had intended that such a common carrier should apply for a further permit to operate as a common carrier within a city, it would have so stated. For us to hold that plaintiff was required to apply for and secure a new permit under subdivision 1 of § 11 of the Act of 1947 would necessitate our rewriting the statute, and would compel us to completely ignore the very expressive word “exclusively” used therein, and this is true whether we treat the word “exclusively” as referring to a type of operation or merely as a part of the description of the persons to whom permits shall issue. We would be forced “to insert what has been omitted” and “to omit what has been inserted” in the statute, in direct violation of the prohibition contained in §2-216, OCLA (ORS 174.010). We would have to consider the statute as reading thus: “There shall be issued to all persons now owning and operating motor vehicles in for hire service within the incorporated limits of cities and towns * * * permits to operate as common or contract carriers within the incorporated limits of cities and towns * * *.” Of course, if the statute so read, its terms would be all-inclusive, and plaintiff, as well as all other common carriers similarly situated, would come within its terms; but the statute does not so read. It contains the word “exclusively”, and to that word must be given meaning and effect. To do otherwise would amount to judicial legislation. We are not permitted to ignore the plain import of the language used in subdivision 1 of § 11.

We hold that plaintiff was not required under the Act of 1947 to apply to defendant for an additional permit to continue its local cartage operations within the city of Portland. Such operations are fully authorized under the permit it held at the time the 1947 Act was adopted, and now holds; subject, however, to all rules, regulations, fees, and taxes prescribed under the law for such intracity transportation for hire.

The decree is reversed.