Iron Horse Stage Lines, Inc. v. Public Utility Commission

De MUNIZ, J.,

dissenting.

The majority concludes that, because ORS 767.415 regulates carriers and neither Berg’s nor Ski Corp is a carrier with respect to the Express, there is no basis on which to issue a cease and desist order. However, as PUC states, “[arranging * * * charter service is what passenger brokers do,” and ORS 767.040 provides that

“[n]o common carrier, contract carrier or private carrier shall operate any motor vehicle for the transportation of persons or property, or both, on any public highway in this state, and no person shall act as a broker, except in accordance with the provisions of this chapter.” (Emphasis supplied.)

Berg’s is an agent of Le Traveller’s, a broker licensed under ORS chapter 767.1 Accordingly, the arrangement here must comply with the requirements of chapter 767, and whether or not it does depends on whether it is a “charter service” as defined in ORS 767.005(5). The majority opinion does not address that central issue, and, because I conclude that the PUC erroneously interpreted “charter service,” I dissent.

*677 ORS 767.005(5) defines “charter service” to be an

“irregular route passenger service under contract with a carrier for exclusive use of the vehicle by a complete, cohesive group that has a common trip purpose.”

In concluding that the arrangement here came within that definition, PUC said:

“[Le Traveler’s and Berg’s] arranged for transportation services which were provided by carriers holding charter carrier authority from the Commission. The charter groups were comprised of individuals, brought together under the auspices of a licensed broker, who sought to ski or to otherwise use the destination recreational facilities available at the Willamette Pass ski area.”

Plaintiff is incorrect in arguing that Berg’s was not a charter service, because all the passengers who signed up did ,not want to use Ski Corp’s skiing facilities for skiing activities, and, therefore, there was no common trip purpose. PUC’s interpretation, that use of recreational facilities at a destination constitutes a “common trip purpose” even though the recreation might not be identical for each passenger, is within the range of possible interpretations for that term.

However, ORS 767.005(5) requires not only a common trip purpose but also a “complete, cohesive group.” Interpretation of a statute requires giving meaning to every phrase, if possible. Kankkonen v. Hendrickson, et al, 232 Or 49, 67, 374 P2d 393 (1962). PUC did not address the phrase, apparently concluding that a common trip purpose serves to define the “complete cohesive group.” However, the two are not the same.

ORS 767.005(5) was enacted in 1981 as part of Senate Bill 121, in which the legislature provided for a new irregular route passenger service of “special operations.”2 The statement prepared by Robert E. Royer, Assistant Director of the Oregon Department of Transportation, and presented to the Senate Transportation Committee in support of *678 the bill, explained how special operations would differ from charter service:

“The concept embodied in Senate Bill 121 is to encourage greater energy efficiency in transportation to special events. For this purpose, special events will typically include sporting and entertainment events. These are events which may be scheduled well in advance and may occur frequently but not on an every day basis.

“The purpose of Senate Bill 121 is to create a new category of irregular route service within Chapter 767 (regulatory authority of the Public Utility Commissioner). Presently, an irregular route carrier of passengers may be licensed to operate only as a charter service. In a typical charter operation all the seats on a bus are sold to a single entity as a group. An individual cannot buy a single seat on a charter bus. In other words, if a group large enough to charter a bus cannot be brought together under a single umbrella and if regular route service is not available to a special event, an individual has no public transportation alternative under present law.

“Senate Bill 121 will define charter service and a new category called ‘special operations.’ It also allows a carrier to sell tickets on an individual basis while providing the service to a special event.” Minutes, Senate Transportation Committee, February 9, 1981 (Exhibit C). (Emphasis supplied.)

That history supports that the “complete, cohesive group” in ORS 767.005(5) must have some identity as an entity apart from the common trip purpose.

ORS 767.010(l)(b) states that one of the policies behind regulation of motor carriers is to “[fjoster sound, economic conditions in transportation.” PUC is to regulate operating schedules by regular route carriers, in part to prevent unnecessary duplication of one regular route carrier of the services afforded by other regular route carriers. ORS 767.405(5).3 The legislative history of ORS 767.005(5) demonstrates that a charter service was not intended to be used as a subterfuge to provide competition for regular route service, without meeting the requirements to be licensed for a regular route. The requirement that a charter service be a group that *679 not only has a common trip purpose but is also a complete cohesive group, avoids improper use of a charter service.

PUC’s order does not correctly interpret the term “charter service,” and the majority opinion does not interpret it at all. I dissent.

ORS 767.005(1) defines broker as

“any person not a ‘motor carrier’ or a bona fide employee or agent of any carrier who sells or offers for sale any transportation subject to this chapter, or negotiates for or purports to be one who sells or arranges for such transportation.”

ORS 767.005(19) defines special operations as

“irregular route passenger service that is not charter service or the usual operation of the ordinary regular route common carrier of passengers and involves the sale of tickets by the carrier to the individual passenger.”

The hearings officer here concluded that the Express was a regular route service.