Church v. Public Utilities Commission

[400]

McCOMB, J.

Petitioner seeks to obtain annulment of an

order of the

Public Utilities Commission pursuant to the provisions of section 1756 of the Public Utilities Code.

1

The Public Utilities Commission on its own motion, on November 29,1955, ordered an investigation into the practices of petitioner, an overlying carrier, relating to rate arrangements with certain subhaulers.

The commission found that petitioner was underpaying the subhaulers and ordered reparation. After respondent commission rendered its decision, a petition for rehearing was filed by petitioner in which he urged, among other points, that the order of the commission was barred by the statute of limitations, and particularly by the provisions of section 339, subdivision 1, of the Code of Civil Procedure. This petition was granted, and an answer was filed by petitioner pleading the statute of limitations and section 339, subdivision 1, of the Code of Civil Procedure. Thereafter, respondent commission rendered its decision ordering petitioner to make reparation. A petition for rehearing of this order was denied.

It is conceded that the oral agreements upon which petitioner’s alleged liability rests were entered into more than two years before the present proceeding was instituted.

These are the questions necessary for us to determine:

First.

In the instant case, which statute of limitations was applicable, the one prescribed by section 338, subdivision 1, of the Code of Civil Procedure or the one prescribed by section 339, subdivision 1, of that code?

2

[401]

Minimum hauling rates to be charged for transportation services by licensed highway carriers on either an hourly or a ton-mileage basis are fixed by law. The law, however, does not create the liability. It only determines the amount of the liability created by the agreement of the parties.