Black Ball Freight Service v. Washington Utilities and Transp. Commission

• Decision Date: 31 December 1969
• Docket Number: No. 40264,40264
• Citation: 77 Wn.2d 479,463 P.2d 169
• Court: Washington Supreme Court
• Parties: BLACK BALL FREIGHT SERVICE, a corporation, and Poulsbo-Seattle Auto Freight, a corporation, Appellants, v. WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION, Respondent, and Edwin J. Becker, doing business as Becker Transfer Co., and Peninsula Truck Lines, Inc., a corporation, Additional Respondents.

Page 479

77 Wn.2d 479

463 P.2d 169

BLACK BALL FREIGHT SERVICE, a corporation, and Poulsbo-Seattle Auto Freight, a corporation, Appellants, v. WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION, Respondent and Edwin J. Becker, doing business as Becker Transfer Co., and Peninsula Truck Lines, Inc., a corporation Additional Respondents.

No. 40264.

Supreme Court of Washington, En Banc.

Dec. 31, 1969.

Reaugh, Hart, Allison, Prescott & Davis, George H. Hart, Jack R. Davis, Seattle, for appellants.

George R. LaBissoniere, Seattle, Slade Gorton, Atty. Gen., Robert E. Simpson, Asst. Atty. Gen., Olympia, for respondent.

HILL, Judge.

To give this case its proper setting we quote from City Sanitary Serv., Inc. v. Washington Util. & Transp. Comm., 64 Wash.2d 739, 741, 393 P.2d 952, 954 (1964), as follows:

The Washington Utilities and Transportation Commission is an administrative agency, and as such is a fact-finding tribunal. Herrett Trucking Co. v. Washington Public Ser. Comm., 58 Wash.2d 542, 364 P.2d 505; State ex rel. Arrow Transp. Co. v. Washington Util. & Transp. Comm., 60 Wash.2d 825, 376 P.2d 433. Its findings of fact are by statute (RCW 81.04.430) made prima facie correct, and the burden is upon the one attacking a finding, conclusion or decision to show that it is unlawful, unsupported by material and substantial evidence, or is arbitrary or capricious. RCW 34.04.130(6); ¹ Herrett Trucking Co. v. Washington Public Ser. Comm., Supra; Herrett Trucking Co. v. Washington Public Ser. Comm., 61 Wash.2d 234, 377 P.2d 871. See also State ex rel. Dawes v. Washington State Highway Comm., 63 Wash.2d 34, 385 P.2d 376. Courts should not and will not interfere with or substitute their judgment for a decision of the commission when it has properly acted within the sphere of its purpose, expertise, and competence. Herrett Trucking Co. v. Washington Public Ser. Comm., 61 Wash.2d 234, 377 P.2d 871.

Fully conscious of the limitation placed on our review of decisions of such administrative agencies, we turn our attention to the present controversy.

The Becker Transfer Co. (hereinafter Becker) filed an application with the Washington Utilities and Transportation Commission (hereinafter the Commission) to transfer to Peninsula Truck Lines, Inc. (hereinafter Peninsula) the Mason, Kitsap, Grays Harbor, Clallam and Jefferson ² counties portion of their irregular route ³ radial freight hauling permit. The permit originally authorized, Inter alia, the transportation of general freight between Seattle and points in Western Washington, excluding the city of Lynden.

Several auto freight carriers protested, filing a complaint and petition with the Commission (or intervening) alleging that Becker had not actively exercised the portion of the rights sought to be transferred; that sparse and sporadic operations had been conducted for the purpose of reactivating the dormant permit rights; and that the application for transfer would be tantamount to an authorization of a new service without establishing that public convenience and necessity require such service.

A hearing was held before the Commission's examiner, and subsequent thereto he prepared 'Proposed Findings of Fact, Conclusions of Law and an Order Denying Application and Dismissing Complaint.' The reason given for denial of the application for transfer was:

The unit of irregular route, which the applicants seek to segment, is not divisible into component areas for the purpose of transfer. The piecemeal area segmentation of units of irregular route authority does not appear consistent with the nature of the rights involved.

Exceptions to portions of the proposed order were filed by all of the parties appearing before the Commission. After reviewing the proposed order and the record on which it was based, the Commission issued its order rejecting the examiner's proposed findings and order, and granting the requested transfer.

Thereafter, under the provisions of the Washington State Administrative Procedure Act (RCW 34.04) two of the protesants, Poulsbo-Seattle Auto Freight, Inc. (hereinafter Poulsbo) and Black Ball Freight Service (hereinafter Black Ball) obtained a writ of review from the Superior Court for Thurston County. That court affirmed the Commission's order granting the transfer. This appeal by Black Ball and Poulsbo followed.

Appellants first claim that the rights transferred are not assignable because they are dormant, ⁴ and that the Commission's finding to the contrary is unsupported by material and substantial evidence. ⁵ While the record does not show extensive operation under the permit, it undeniably shows operation. It must be remembered that the common carrier permit here involved called for nonscheduled, irregular route service. As such, readiness, willingness and ability to serve are more significant elements in determining the issue of dormancy than is a mere numerical calculation of the number of shipments. Van Arsdale v. King, 149 So.2d 353 (Fla.1963). See also, Bennett v. State Corp. Comm., 73 N.M. 126, 385 P.2d 978 (1963); and Neuswanger v. Houk, 170 Neb. 670, 104 N.W.2d 235 (1960).

In Herrett Trucking Co. v. Washington Pub. Serv. Comm., 61 Wash.2d 234, 242, 377 P.2d 871, 876 (1963), we stated:

On an application for a transfer of state-wide hauling rights, the Commission, before determining that the permit was dormant as to any area, would consider such factors as whether the transferor was equipped to do the hauling authorized by its permit and the intent and its willingness to provide state-wide service if requested.

There was here, in addition to the evidence of many hauls of heavy machinery in 1959, the testimony that Whitley had never refused to make trips into western Washington and that it held itself ready to serve that part of the state, if requested so to do. There was no evidence of any intent to abandon its intrastate rights.

In this case, Becker maintained equipment consistent with the size and scope of its operation and was in a position to provide service under its permit when called upon to do so. There was no evidence of intent to abandon any of its rights.

Although the Herrett case involved statewide rights, while we are dealing here with only 3 counties, the rationale and standards as to what constitutes dormant rights remain the same.

Clearly the Commission's finding that the rights which Becker sought to transfer to Peninsula were not dormant is sustained by material and substantial evidence within the purview of the dormancy cases we have cited.

Appellants also argue that no evidence was offered to show that 'public convenience and necessity' required the service Peninsula would perform under the transferred authority. They base their contention on the theory that when one considers the policy of the statutory regulations of motor common carrier service under RCW 81.80.020, ⁶ sound regulation requires an evaluation of the need for proposed new and different competitive operations whether they are by transfer, acquisition of control, or direct application for new authorities. It is argued that, in effect, the Commission has in this case authorized a totally new and different service which must therefore meet the 'public convenience and necessity' test of RCW 81.80.070. ⁷

No cases are cited by the appellants, and we find none, where there has been a determination, under such facts, that there would be a new and different service. The authority of the permit would remain the same I.e., irregular route, radial freight hauling, and the only difference would be if Peninsula were to increase the activity under the permit. The effect of this might be more competition to the appellants, but the action would be under the same permit, and could not exceed its limits. The fact of increased competition alone has no legal significance since appellants are not entitled to immunity from competition. See State ex rel. Adams Transport, Inc. v. Washington Pub. Serv. Comm., 54 Wash.2d 382, 340 P.2d 784 (1959).

The only complaint they would have against competition would be from competitive practices which impair the transportation service presently available to the public and thereby fall within the ambit of 'unfair or destructive competitive practices' under RCW 81.80.020. Northern Pac. Transport Co. v. Washington Util. & Transp. Comm., 69 Wash.2d 472, 418 P.2d 735 (1966).

Even if this were somehow considered to be a new and different service, the standards relating to the issuance of a new authority have no application when dealing with the transfer...