W. D. CLAYPOOL, AMOS A. BETTS and LOREN VAUGHN, as Members of and Constituting the Corporation Commission of the State of Arizona, E. W. WHITWORTH, as Superintendent of the Motor Vehicle Division of the Arizona Highway Department, and JOHN W. MURPHY, as Attorney General of the State of Arizona, Appellants,
LIGHTNING DELIVERY COMPANY, a Corporation, ARIZONA STORAGE & DISTRIBUTING COMPANY, a Corporation, CHAMBERS TRANSFER & STORAGE COMPANY, a Corporation, and All Other Persons and Corporations Similarly Situated, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded, with instructions.
Mr. K. Berry Peterson, Attorney General, Mr. Arthur T. La Prade, Assistant Attorney General, and Mr. H. A. Elliott, Special Counsel, Arizona Highway Department, for Appellants.
Messrs. Sloan, Holton, McKesson & Scott, for Appellees.
[38 Ariz. 264] LOCKWOOD, J.
Lightning Delivery Company, a corporation, Arizona Storage & Distributing Company, a corporation, and Chambers Transfer & Storage Company, a corporation, hereinafter called plaintiffs, filed this action against W. D. Claypool, Amos A. Betts, and Loren Vaughn, as members of the corporation commission of the state of Arizona, E. W. Whitworth, as superintendent of the motor vehicle division of the Arizona highway department, and John W. Murphy, as Attorney General of the state of Arizona, hereinafter called defendants, to restrain the latter, as officers of the state, from proceeding to collect from plaintiffs the motor vehicle tax imposed under the provisions of section 1680, Revised Code 1928. The substance of the complaint was that (a) the statute did not apply to plaintiffs, and (b) that, if it did, it was discriminatory and unconstitutional.
Defendants demurred generally and specially to the complaint. The special demurrers were: (a) misjoinder of causes of action; (b) that the action was to [38 Ariz. 265] enjoin the collection of a tax; (c) that it was to prevent the execution of a public statute for public benefit; and (d) that plaintiffs had a plain, speedy, and adequate remedy at law. The general demurrer raised the point that the allegations of the complaint showed each of plaintiffs to fall within the terms of the statute. Each of the demurrers was overruled, and, the motor vehicle superintendent having in the meantime determined and assessed the tax due from each plaintiff under the terms of the statute, defendants filed cross-complaints against them, seeking the collection of the tax. They also filed a plea to the jurisdiction of the trial court on the grounds: (a) that plaintiff had a plain, speedy, and adequate remedy at law; (b) that the action sought to enjoin the collection of taxes imposed by the state of Arizona; (c) that the action sought to enjoin the execution by officers of the law of a public statute for public benefit; and (d) that the action constituted a collateral attack upon the judgments and decree of an officer of the state possessing and having exercised judicial power. The plea to the jurisdiction was denied, and upon plaintiffs' motion defendants' cross-complaints were stricken. The matter was tried by the court without a jury, and a decree was rendered in favor of plaintiffs upon the ground that none of them was a common carrier, and therefore within the terms of the statute, except plaintiff Chambers Transfer & Storage Company, and it only in its operation of a stage line from Phoenix to Buckeye, in Maricopa county, and from the decree this appeal has been taken.
While there are a number of other questions involved in the appeal, the primary one is whether or not plaintiffs, or any of them, are common carriers. In considering this question we think it best first to determine the elements necessary to constitute a party a common carrier, and then to apply these elements to the facts in the case at bar.
[38 Ariz. 266] The Supreme Court of Arizona, in the case of Santa Fe, Prescott & Phoenix Ry. Co. v. Grant Bros. Construction Co., 13 Ariz. 186, 108 P. 467, laid down the test by which it is determined whether a party is a common carrier, as follows:
"'(1) He must be engaged in the business of carrying goods for
others as a public employment, and must hold himself out as ready to engage in the transportation of goods for persons generally as a business, and not as a casual occupation. (2) He must undertake to carry goods of the kind to which his business is confined. (3) He must undertake to carry by the methods by which his business is conducted, and over his established roads. (4) The transportation must be for hire. (5) An action must lie against him if he refuses, without sufficient reason, to carry such goods for those who are willing to comply with his terms.'"
The first four characteristics set forth in this definition are almost universally approved, and we reiterate them as being correct. We think, however, that, strictly speaking, the fifth has no place in the definition of a common carrier. It is rather a liability which the law imposes on a party only if, as, and when it is already determined to be a common carrier. Lloyd v. Haugh & Keenan Storage & T. Co., 223 Pa. 148, 21 L.R.A. (N.S) 188, 72 A. 516. It is not necessary, however, in order to constitute a party a common carrier, that it operate its means of conveyance between fixed termini, nor upon regular schedules, nor at a uniform or fixed tariff. Cushing v. White, 101 Wash. 172, L.R.A. 1918F 463, 172 P. 229; State v. Boyd Transfer & Storage Co., 168 Minn. 190, 209 N.W. 872; Collier v. Langan & Taylo Storage & Moving Co., 147 Mo.App. 700, 127 S.W. 435; Jackson Architectural Iron Works v. Hurlbut, 158 N.Y. 34, 70 Am. St. Rep. 432, 52 N.E. 665. And it in no way alters the character of a common carrier that it makes specific and individual contracts, either [38 Ariz. 267] written or oral, for each business transaction. Smitherman & McDonald v. Mansfield Hardwood Lbr. Co., (D.C.) 6 Fed. (2d); Breuer v. Public Utilities Com., 118 Ohio St. 95, 160 N.E. 623; State v. Washington Tug & Barge Co., 140 Wash. 613, 250 P. 49. Nor can a carrier which holds itself out to the public as being a common carrier divest itself of that character because it has a secret or private intention to reserve the right to refuse to serve such parties as it objects to, or because it may, even upon occasion, exercise such right, particularly if such reservation and exercise thereof is in reality, though not ostensibly, merely for the purpose of divesting itself of the character and responsibility of a common carrier. Cushing v. White, supra; Stoner v. Underseth, 85 Mont. 11, 277 P. 437; Goldsworthy v. Public Service Com., 141 Md. 674, 119 A. 693; State v. Washington Tug & Barge Co., supra; Lloyd v. Haugh & Keenan Storage & T. Co., supra; Davis v. People, 79 Colo. 642, 247 P. 801; Sanger v. Lukens, (D.C.) 24 F.2d 226.
As was said by the Supreme Court of the United States in Terminal Taxicab Co. v. Kutz,241 U.S. 252, Ann. Cas. 1916D 765, 60 L.Ed. 984, 36 S.Ct. 583, in determining whether the plaintiff in that case was a common carrier: "The important thing is what it does, not what its charter says." So in this, as in any other similar case, it is the general conduct of the actual business, and not isolated acts or statements, public or private, which fix the character of a common carrier on a ...