Public Service Commissions: Jurisdiction of Railroad Commission over Extra Territorial Operation of Municipal Plant
California Law Review
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... ntent at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact firstname.lastname@example.org. 25^ 25^ g CALIFORNIA LAW REVIEW g CALIFORNIA LAW REVIEW however, and the idea of an action in rem against the machine seems also desirable because only such an enactment would adequately solve the problem of liability in the case of the family automobile. But to allow such an action is not without difficulties. A statute, imposing a liability on an owner of a motor vehicle for negligence in its operation by any person except a thief, was passed in Michigan.8 This was held unconstitutional under the due process clause of the Fourteenth Amendment to the Constitution, on the ground that it is unconstitutional per se to impose liability upon one who is without fault or negligence.9 The better view, however, is that imposition of absolute liability is not unconstitutional except where the regulation is unreasonable in view of the ends to be attained.l° In the case of automobile ownership it seems well within the power of the legislature to i-mpose a liability to the extent of the value of the machine in all cases where any acquiescence on the owner's part can possibly be found. Even this would leave the practical problem of the court crowded with negligence cases and it has beens suggested that it would be desirable to work out some scheme of absb lute liability regardless of fault in which the burden would be evenly divided by means of insurance.ll This, however, seems a bit drastic and not wholly in accord with present-day theories. In the absence of statutory enactment, however, the second solu-tiOll seems acceptable; that iSs where the court stretches the rather elastic doctrine of agency so as to include ordinary automobile driving within the scope of authority of any member of the family. In Birch v. Abercrombie12 the court held that since the automobile was being used for one of the very purposes or which tne owner intended it should be used, to wit, the pleasure of the family, it was being used by the agent of the owner acting within the scope of his authority. This has been followed by a great number of courtsl3 and it is to be regretted that California is not among them. AI. DI. PUBLIC SERVICE COMMISSIONS: JURISUICTION OF RAII ROAD COMMISSION OVER EX1RA TERRITORIAL OPERA1ION OF MUNICIPAL PLANT-A field of public service of increasing importance was removed from the purview of state supervision in City of Pasadena v. Railroad Cotnmissionl in which case it was held that the commission had no jurisdiction over an electric plant owned by a municipality even when engaged in serving a separate city outside its borders. The opinion interpreted literally Article 12, section ^3, 8 Dougherty v.