Colorado § 40-10.1-201 - Certificate required.

§ 40-10.1-201. Certificate required.

(1) A person shall not operate or offer to operate as a common carrier in intrastate commerce without first having obtained from the commission a certificate declaring that the present or future public convenience and necessity requires or will require such operation.

(2) The fact that a person carries on operations, in whole or in part, between substantially fixed points or over established routes, or under contracts with more than one person, or by making repeated or periodic trips is prima facie evidence that the person is a common carrier and subject to this part 2 and part 1 of this article.

Source: L. 2011: Entire article added, (HB 11-1198), ch. 127, p. 405, § 1, effective August 10.

ANNOTATION

Annotator's note. Cases material to this section decided prior to its earliest source, L. 27, p. 499, § 1, have been included in the annotations to this section. Since § 40-10.1-201 is similar to §§ 40-10-101 and 40-10-104 as they existed prior to the 2011 reorganization of the motor carrier statutes, relevant cases construing those sections have been included in the annotations to this section.

Legislative intent in establishing several types of motor vehicle transportation. The general assembly established several types of motor vehicle transportation, including common and contract carriage. By doing so, without question it intended to protect the public health, safety, and general welfare by providing a framework for the better transportation of persons and property. Denver Cleanup Serv. Inc. v. Pub. Utils. Comm'n, 192 Colo. 537, 561 P.2d 1252 (1977).

This section applies to common carriers, that is one whose business occupation or regular calling is to carry chattels for all persons who may choose to employ and remunerate him. Bushnell v. People, 92 Colo. 174, 19 P.2d 197 (1933).

Contract carriers remain outside scope of regulation. This article was enacted for the regulation of motor vehicle carriers, but the act does not encompass private carriers. Private carriers remain outside the scope of regulation. Burbridge v. Pub. Utils. Comm'n, 91 Colo. 134, 12 P.2d 1115 (1932); Pub. Utils. Comm'n v. Stanton Transp. Co., 153 Colo. 372, 386 P.2d 590 (1963).

No clear definition of contract carriage. One may look in vain in the statutes or in the rulings of the commission and of the supreme court for a clear definition of contract carriage or for an articulation of specific guidelines to be followed in the issuance of a contract carrier permit. Denver Cleanup Serv., Inc. v. Pub. Utils. Comm'n, 192 Colo. 537, 561 P.2d 1252 (1977).

The fundamental distinction between a common and contract carrier is that the contract carrier enters into a contract with each of his customers and assumes no obligation to carry for any other, while the common carrier undertakes to carry for all persons indifferently. Ward Transp. Inc. v. Pub. Utils. Comm'n, 151 Colo. 76, 376 P.2d 166 (1962).

The principal statutory distinction between the two is that a contract carrier is one which is not a common carrier. Denver Cleanup Serv., Inc. v. Pub. Utils. Comm'n, 192 Colo. 537, 561 P.2d 1252 (1977).

One of the fundamental distinctions between a contract carrier and a common carrier is that a contract carrier has an obligation only to his contract-customers and has no obligation to others desiring carriage. In contrast, the common carrier must convey for all desiring its transportation. Denver Cleanup Serv., Inc. v. Pub. Utils. Comm'n, 192 Colo. 537, 561 P.2d 1252 (1977).

A motor vehicle carrier cannot at the same time be both a contract carrier and a common carrier by utilizing one part of a truck for common-carrier service and another part of the same truck for contract-carrier service. Such a holding would make regulatory power ridiculous. McKay v. Pub. Utils. Comm'n, 104 Colo. 402, 91 P.2d 965 (1939).

Situation in which carrier is neither common nor private or contract. A milk company which transports all the milk it produces to its processing plant, f.o.b. at the producers' stations is neither a common carrier nor a private or contract carrier for hire, because it then hauls only its own property. Colo. Milk Transp., Inc. v. Safeway Stores, Inc., 269 F.2d 755 (10th Cir. 1959).

Indiscriminately accepting freight is undoubtedly one of the important tests in ascertaining whether or not a certain operation has the elements of a common carrier. Greeley Transp. Co. v. People, 79 Colo. 307, 245 P. 720 (1926); Burbridge v. Pub. Utils. Comm'n, 91 Colo. 134, 12 P.2d 1115 (1932); Bushnell v. People, 92 Colo. 174, 19 P.2d 197 (1933); McDill v. North E. Motor Freight, Inc., 92 Colo. 198, 19 P.2d 204 (1933); McKay v. Pub. Utils. Comm'n, 104 Colo. 402, 91 P.2d 965 (1939); Ward Transp., Inc. v. Pub. Utils. Comm'n, 151 Colo. 76, 376 P.2d 166 (1962).

Carrier who does not accept freight for hire indiscriminately is not a common carrier. A motor vehicle operator engaged in the transportation of freight for hire under contracts with various individuals is not a common carrier because he does not hold himself out as willing to, and does not in fact, accept freight for transportation for hire indiscriminately for all who might or did seek such service. Ward Transp., Inc. v. Pub. Utils. Comm'n, 151 Colo. 76, 376 P.2d 166 (1962).

Test used in determining whether applicant is contract carrier held invalid. Denver Cleanup Serv., Inc. v. Pub. Utils. Comm'n, 192 Colo. 537, 561 P.2d 1252 (1977).

The constitution and the statutes of this state have given to the business of trash hauling the status of a matter of statewide concern, subject to the jurisdiction of the public utilities commission (PUC). Under such circumstances, a city has no power to pass an ordinance which is in conflict with the exercise by the commission of its statutory power. Givigliano v. Veltri, 180 Colo. 10, 501 P.2d 1044 (1972).

"Property" embraces matter removed to dumps. The word "property" as applied to the act is intended to and does embrace the transportation for hire of matter and things which the parties remove from various households and establishments and haul to nearby dumps. Schlagel v. Hoelsken, 162 Colo. 142, 425 P.2d 39 (1967).

Right of property exists in refuse material until it is destroyed. Although the owner of refuse materials may regard them as of no value, still the right to their possession and the need for their disposal are within the control of the individual owner. All of these materials have certain valuable uses under varied circumstances, and even though the owner desires to dispose of or destroy such materials, the right of property continues until disposed of or destroyed. In performing such disposal service, appellant was clearly engaged in the business of a common carrier. Schlagel v. Hoelsken, 162 Colo. 142, 425 P.2d 39 (1967).

Vehicles engaged in transporting trash are within meaning of section. The amendment of § 40-10-101 expressly to include in the definition of "motor vehicle carrier", as follows: "any motor vehicle used in serving the public in the business of transportation of ashes, trash, waste, rubbish, and garbage", did not change the law; it merely clarified it. Schlagel v. Hoelsken, 162 Colo. 142, 425 P.2d 39 (1967).

Those who merely secure passengers desiring to make trips as paying guests for private parties planning motor vehicle trips are not functioning as a public utility warranting regulation by the commission. Yellow Cab Coop. Ass'n v. Colo. Ground Transp. Ctr., Inc., 654 P.2d 1331 (Colo. App. 1982).

Every application by a carrier for a certificate of public convenience and necessity must be determined by the commission on its own individual merits, and consideration must be given to all competent evidence bearing upon the question of whether public convenience and necessity will be served by the granting of such application. Any applicant for a certificate, whether private carrier or otherwise, has the right to establish public convenience and necessity by any relevant evidence. Ephraim Freightways, Inc. v. Pub. Utils. Comm'n, 141 Colo. 330, 347 P.2d 960 (1959); McKenna v. Nigro, 150 Colo. 335, 372 P.2d 744 (1962).

Before two or more separate authorities may be integrated into one authority, there must be a showing that public convenience and necessity demand the new integrated service. McKenna v. Nigro, 150 Colo. 335, 372 P.2d 744 (1962); Red Ball Motor Freight, Inc. v. Pub. Utils. Comm'n, 154 Colo. 329, 390 P.2d 480 (1964).

The failure of the commission to take action against one who exceeds the authority granted does not ripen into a grant of authority to carry on an illegal operation. McKenna v. Nigro, 150 Colo. 335, 372 P.2d 744 (1962); G & G Trucking v. Pub. Utils. Comm'n of Colo., 745 P.2d 211 (Colo. 1987).

The unlawful usurpation of authority and demonstration of the success of such unlawful operation can form no basis for the grant of authority to continue such operation. McKenna v. Nigro, 150 Colo. 335, 372 P.2d 744 (1962); G & G Trucking v. Pub. Utils. Comm'n of Colo., 745 P.2d 211 (Colo. 1987).

Jurisdiction is expressly conferred on the commission by this section. Eveready Freight Serv., Inc. v. Pub. Utils. Comm'n, 131 Colo. 172, 280 P.2d 442 (1955).

Under this section a common carrier must have a certificate of convenience and necessity and a private or contract carrier must have an authorizing certificate before engaging in such business, and one failing to comply with the law is responsible for damages caused to others. Colo. Milk Transp., Inc. v. Safeway Stores, Inc., 269 F.2d 755 (10th Cir. 1959); McKenna v. Nigro, 150 Colo. 335, 372 P.2d 744 (1962).

The PUC is the regulatory body, and as such is the one to determine whether it will or will not grant temporary certificates. B.D.C. Corp. v. Pub. Utils. Comm'n, 167 Colo. 472, 448 P.2d 615 (1968).

Applied in Nw. Transp. Serv., Inc. v. Pub. Utils. Comm'n, 197 Colo. 437, 593 P.2d 1366 (1979); Morey v. Pub. Utils. Comm'n, 629 P.2d 1061 (Colo. 1981).