I dissent from the decision of the court affirming the judgment of the lower court. I am in agreement with that part of the decision which holds that the public utilities commission may initiate proceedings such as this in a district court without having first determined in a proceeding before itself that the person or corporation complained of is engaged in operating a public utility and is violating the law or some order of the commission. This is the only proposition discussed in the briefs. Both parties agreed that this was the single question to be determined on this appeal. Having decided this point in harmony with the contention of appellant, the judgment of the district court should be reversed, and the cause remanded.
I am unable to agree with the conclusion, or the reasoning by which it is reached, that the complaint filed herein fails to state a cause of action because it does not aver that defendant operated an automobile over an "established route" or any part thereof, meaning thereby a route established by some order or action of the public utilities commission of Utah. The complaint, while not using the words "established route," sufficiently charges that the defendant is a common carrier and that as such he is operating a freight truck line transporting freight for compensation over and along the public highways between Salt Lake City and Vernal, via Duchesne, along a route established by himself. It is true the complaint does not state that this route has been established by the commission. On the other hand, it is alleged that the defendant has not received from the commission a certificate of convenience and necessity or a permit of any kind, and because of that fact he is operating without authorization and in violation of law. Had defendant's route been established by the issuance to him of a certificate of *Page 541 convenience and necessity, which is the only way in which the commission establishes routes, there would be no need for this lawsuit. This action is made necessary because defendant has begun the operation of his freight line over a regular route between fixed termini without such a certificate. In doing this he ignores the commission and violates the law, if the allegations of the complaint are true. By his demurrer defendant admits the truth of such allegations, at least for the purpose of this case. By the provisions of Comp. Laws Utah 1917, § 4798, the commission was vested with power and jurisdiction to supervise and regulate every utility in the state, as defined, and to supervise the business of every such utility. Section 4818, in paragraph 1 thereof, provides: "No * * * automobile corporation * * * shall henceforth establish or begin * * * operation of a * * * line, route, * * * or system, or of any extension of * * * line, route, * * * or system, without having first obtained from the commission a certificate that the present or future public convenience and necessity * * * will require such construction."
Paragraph 2 of the same section provides that no public utility specified in paragraph 1 shall exercise any right or privilege under any franchise or permit without first having obtained such certificate. From the above it is clearly seen that the establishment or the beginning of operation of a line or route by an automobile corporation is not lawful until a certificate of convenience and necessity has been issued by the commission. The word "establish" is used in a manner to indicate that such a line may be established and may be operated by the automobile corporation even though such establishment and operation be in violation of law. The word is used in its primary sense as meaning to bring into being, to constitute, to create, to form, to locate, to originate. 21 C.J. 898. It is the establishment and operation of such an automobile line or route without the certificate which makes it unlawful. The unlawfulness of such an act in establishing and beginning the operation of such a *Page 542 line or system does not depend upon previous action by the commission in constituting or establishing a route, nor does it depend upon the granting of a certificate and the establishment of a route by some competitor.
Defendant is alleged by the complaint to be a common carrier. This term is defined in section 4782, par. 14, as including every "automobile corporation; * * * and every other car corporation or person, * * * whatsoever engaged in the transportation of persons or property for public service, over regular routes between points within this state." In the same section, par. 13, "Automobile corporation" is defined to include "every corporation or person * * * engaged in, or transacting the business of, transporting passengers or freight, merchandise or other property for compensation, by means of automobiles or motor stages on public streets, roads or highways along established routes, within this state." These various sections must be construed in pari materia and with a view of giving effect to the statute and its various provisions, looking to the workability of the statute as a whole. By the prevailing opinion it is held that the words "established routes" as used in paragraph 13 of section 4782, restricts and limits the supervision and control of the commission to only such automobile corporations as operate a line over a route first established by the commission. I find no language in the statute which justifies any such construction. Such a view entirely ignores and defeats and makes inoperative and of no effect the provisions of section 4818, making it unlawful for anyone to establish or commence the operation of such a line, route, or system of motor truck transportation without first obtaining the required certificate. It also limits the jurisdiction of the commission, as provided in section 4798, and places beyond its control all such common carriers or public utilities as shall choose to establish and commence the operation of such a line or route and refuse to place themselves voluntarily under the control of the commission. It also defeats the purposes of the act by taking beyond the jurisdiction *Page 543 and control of the commission such common carriers as shall have been refused a certificate of convenience and necessity by application therefor to the commission, and will thereby make possible the operation of such a transportation line, in defiance of the commission and in violation of what seems to me the clear mandate of the law. The case of Public Utilities Commission v.Garviloch, 54 Utah 406, 181 P. 272, is cited by the prevailing opinion in support of its construction of the words "established route." That was a case initiated by the commission against the defendant whom it was alleged operated a stage line in competition with and over the same route used by one who had received from the commission a certificate of convenience and necessity. An injunction was sought but refused by the district court and this judgment was affirmed by this court. The reason, however, as is well stated in the head note, was:
"Though defendant in the operation of his automobile for hire was operating a public utility, yet, as his business was practically that of a taxicab driver, and he had no established route, he will not be enjoined from carrying passengers to destinations at points served by an automobile stage line, having a certificate from the Public Utilities Commission."
In the course of the opinion, Mr. Justice Frick says:
"In other words, if the defendant is merely carrying on a so-called hack or taxicab business upon request from those who may desire to be carried in a special conveyance which is under their direction and control for the time for which it is hired and at a price agreed upon for the services, then he is not operating on or over an established route within the purview of the act, and is not subject to regulation as though he were operating such a route."
Considerable was said in the briefs and argument with regard to the meaning of the words "established route" but the case was not one, as is the instant case, where the charge is that one is operating as a common carrier over a regular route between fixed termini in the transportation of freight, but merely where the defendant in the operation of his taxicab *Page 544 business encroached upon the route of another who had a certificate of convenience and necessity. Mr. Justice Frick speaking to this point indicated that as to that case the solution of that question was not difficult. It is nowhere said that is the only way a route may be established, nor was the word "establish" as used in section 4818 considered. He said:
"Much was said in the argument about what constitutes an established route within the purview of the act and how and by whom such a route may be established. To our minds that question is not difficult of solution. In this case the route, within the purview of the act, was manifestly established over the public highway between the points stated in the complaint and designated in the certificate of convenience and necessity issued to Chandler. No doubt the defendant is not operating his automobile over a route which was established upon his application as was the Chandler route, but that is not controlling."
It was further held that if defendant operated his automobile over Chandler's route, or a substantial part of it, in opposition to or in competition with Chandler, he was doing so in violation of law, and that if Chandler's business was in fact unlawfully interfered with he would have a cause of action and might recover such damages as he could prove and obtain such other relief as may be just and equitable in the premises.
There is nothing in the statute which provides that the commission may or can establish any route or line or transportation system. It grants the commission power to regulate such and to issue certificates of convenience and necessity in proper cases. On the other hand the statute provides that no one may establish or commence the operation of such a line or system without a certificate from the commission. A line or system such as this is commenced, or established, or initiated when some individual or group of individuals, either personally or by forming a corporation, undertake to devote their efforts and capital to public service my making contracts with persons for the transportation of goods, *Page 545 by holding themselves out to the public as a common carrier, by themselves fixing the points between which they intend to operate, by the acquiring of equipment and the employing of chauffeurs and others. Upon an application to the commission it may approve the establishment of such line or system by granting the certificate, and in doing so it may limit or shorten the line or route to be followed. When all is done we may then say the line or route has been lawfully established and the person or corporation operating it to be lawfully operating such route.
It seems also that the decision arrived at on the second proposition negatives and defeats the effectiveness of the decision on the first proposition. First it is said that the commission may bring such an action as this without previously having had a hearing or made an order, and this for the evident purpose of requiring those operating public utilities to submit to the control of the commission or desist from operating in violation of law. Then by the decision on the second proposition it is held, in effect, that the commission may not prosecute such a case as this without first having held some kind of a hearing and making some kind of an order wherein and whereby it shall have established a route over which the defendant can be said to be operating in violation of law.
It is not disclosed in the complaint whether this defendant in the operation of his transportation line or system, is merely ignoring the utilities commission, or whether he has heretofore made application for a certificate which has been refused, and his operation thus being in defiance of the commission and its action. The defendant either is, or is not, a common carrier and a public utility and his status could not be changed by fiat of the public utilities commission. A mere declaration by the commission would not make him a common carrier unless the business transacted by him brings him within that class. I cannot see how his status would be changed in any respect by the utilities *Page 546 commission passing a resolution declaring the road between Vernal and Salt Lake City an "established route." If he is, as alleged, conducting a transportation business between these points on a regular route for the service of the public he is certainly a common carrier and is operating a public utility and because of such facts brings himself within the jurisdiction and control of the commission. I cannot think it was contemplated by the Legislature that only such persons and corporations operating as automobile common carriers who choose to submit themselves to the jurisdiction of the commission should be actually within that jurisdiction and that those who refuse or fail to thus submit themselves are entirely beyond the control of the law.
It was said by Mr. Justice Frick, speaking for the court, inGilmer v. Public Utilities Commission of Utah, 67 Utah 222,247 P. 284, 287:
"In view of the foregoing provisions, when considered in the light of the purposes of the Public Utilities Act, as they must be, there can be but little if any doubt respecting the right and power of the commission to regulate and control the operation of auto stage lines or other motor vehicles which use the public highways and streets for the purpose of transporting either freight or passengers as common carriers."