Carlsen v. Cooney

• Decision Date: 03 February 1923
• Docket Number: 17749.
• Citation: 212 P. 575,123 Wash. 441
• Court: Washington Supreme Court
• Parties: CARLSEN v. COONEY.

212 P. 575

123 Wash. 441

CARLSEN v. COONEY.

No. 17749.

Supreme Court of Washington

February 3, 1923

Department 2.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by John M. Carlsen against E. C. Cooney. Judgment for defendant, and plaintiff appeals. Affirmed.

Vance &amp Christensen, of Olympia, and Remann & Gordon, of Tacoma, for appellant.

Burkey O'Brien & Burkey, of Tacoma, for respondent.

PARKER J.

The plaintiff Carlsen, is the proprietor and operator of a freight service by motor-propelled vehicles over the highways of this state between Tacoma, Camp Lewis, Dupont, and Cady's Camp, between fixed termini and over a regular route, under a certificate of necessity duly issued to him by the Department of Public Works of this state under chapter 111, Laws of 1921. The defendant, Cooney, is the proprietor and operator of a storage and transfer business, having his office and principal place of business in Tacoma. He has not operated his motor-propelled trucks in hauling the goods of his customers between fixed termini, nor over any regular route. He does not have any certificate of necessity under chapter 111, Laws of 1921, but has in all respects complied with chapter 96, Laws of 1921, relating generally to the licensing of motor vehicles; that is, his motor trucks are all duly licensed for use upon the public highways of this state under that law. The plaintiff commenced an action in the superior court for Pierce county seeking an injunction restraining the defendant from hauling goods for compensation over any part of the regular route of the plaintiff's freight service, operated under his certificate of necessity issued by the department of Public Works. The cause being submitted to the superior court upon an agreed statement of facts duly certified by the trial judge as containing all of the material facts in the case judgment was rendered by that court denying to the plaintiff the relief prayed for, from which he has appealed to this court.

In view of our conclusion as to what the legal rights of the defendant are in this case, it hardly seems necessary to notice the facts other than as above stated. We may further observe, however, that it clearly appears from the agreed statement as follows: Defendant has never at any time operated any of his motor trucks for compensation between fixed termini or over a regular route, so as to call for the obtaining of a certificate of necessity authorizing him so to do under chapter 111, Laws of 1921. His particular act, which apparently became the cause of the commencement of this action by the plaintiff, consisted of hauling a large quantity of boots and shoes from Camp Lewis to Tacoma over a portion of plaintiff's regular route. This was done in pursuance of a special hauling contract entered into be defendant with a Tacoma mercantile concern which had purchased the boots and shoes from the United States government. It is not claimed that by carrying out of this hauling contract by defendant amounted to his operating his motor trucks between fixed termini or over a regular route, within the meaning of chapter 111, Laws of 1921. Plaintiff was able, with equipment at his command, to have hauled the boots and shoes from Camp Lewis to Tacoma over his regular route, and stood ready and willing to do so; and we may concede for present purposes that he would have earned whatever profit that might have resulted from such hauling, had defendant been prevented from doing it.

It seems to be conceded, and we shall assume for present purposes, that if defendant has not the lawful right to render any carrying services to his customers, of the nature rendered by him as above noticed, over any portion of plaintiff's regular route, then plaintiff is entitled to the injunctive relief he here seeks. Our problem thus becomes solely one of the construction of chapter 111, Laws of 1921, relating to transportation by motor vehicles over the highways of this state, read, as we think, in the light of chapter 96, Laws of 1921, relating generally to the licensing of motor vehicles for use upon the highways of the state. The passage of these two acts were subjects of consideration by the Legislature of 1921, substantially at the same time. While chapter 111 was the first to receive the affirmative vote of one branch of the Legislature, it received the final affirmative vote of the Legislature two days later and the approval of the Governor one day later.

Chapter 96, Laws of 1921, provides generally for the licensing of all motor vehicles to be used on the highways of the state, and when a license is granted for the operation of a motor vehicle under that law, whether for the carrying of its owner and others he may choose to carry for or without compensation, or whether for carrying goods of its owner or goods of others which he may choose to carry for or without compensation, such vehicle may be lawfully operated by the owner, or any one for him, for either of such purposes, upon any of the highways of the state, in so far as we are concerned with such operation in our present inquiry, except in so far as such operation may be prohibited or restricted by the provisions of chapter 111, Laws of 1921. The title and provisions of that act, in so far as we need here notice them, are as follows:

'An act providing for the additional supervision and regulation of the transportation of persons, and property for compensation over any public highway by motor propelled vehicle: Defining transportation companies and providing for additional supervision and regulation thereof by the public service commission. * * *

'Section 1. * * *

'(d) The term 'auto transportation company' when used in this act means every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, owning, controlling, operating or managing any motor-propelled vehicle not usually operated on or over rails used in the business of transporting persons, and, or property for compensation over any public highway in this state between fixed termini or over a regular route, and not operating exclusively within the incorporated limits of any city or town: Provided, that the term 'auto transportation company,' as used in this act, shall not include corporations or persons, their lessees, trustees, receivers or trustees appointed by any court whatsoever, in so far as they own, control, operate or manage taxicabs, hotel busses, school busses, motor-propelled vehicles, operated exclusively in transporting agricultural, horticultural, or dairy or other farm products from

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