Herrett Trucking Co. v. Washington Public Service Commission
| Decision Date | 10 January 1963 |
| Docket Number | No. 36000,36000 |
| Citation | 61 Wn.2d 234,377 P.2d 871 |
| Court | Washington Supreme Court |
| Parties | HERRETT TRUCKING COMPANY, Inc., Pacific Highway Transport, Inc., Inland Motor Freight, Inc., Coast Lee & Eastes, Inc., Black Ball Freight Service, Inc., Mitchell Bros. Truck Lines, Inc., and Ralph, Carl A. and Clinton D. Pozzi, d/b/a Pozzi Bros. Transportation Company, Respondents, v. WASHINGTON PUBLIC SERVICE COMMISSION, Francis Pearson, Chairman, Patrick D. Sutherland and Dayton A. Witten, Commissioners, Chicago, Milwaukee, St. Paul & Pacific Railroad, a corporation, and D. A. Whitley, Inc., Appellants. STATE of Washington ex rel. CEMENT DISTRIBUTORS, INCORPORATED, Adams Transport, Inc., Hamilton Trucking Service, Inc. and Emil Youngquist, d/b/a Northern Freight Lines, Inc., Respondents, v. WASHINGTON PUBLIC SERVICE COMMISSION, Francis Pearson, Chairman, Patrick D. Sutherland and Dayton A. Witten, Members thereof, D. A. Whitley, Inc., and Chicago, Milwaukee, St. Paul & Pacific Railroad Co., d/b/a Milwaukee Road, Appellants. |
John J. O'Connell Atty. Gen., James R. Cunningham, Asst. Atty. Gen., Olympia, for Washington Public Service Comm.
Don Cary Smith, Olympia, for Herrett Trucking Co.
Norman Sutherland, Portland, Or., for Mitchell Bros. Truck Lines.
B. E. Lutterman, Warren H. Ploeger, Richard L. Gemson, Seattle, for Chicago, M., St. P. & P. R. R.
Reaugh, Hart & Allison, Seattle, and Reuben C. Youngquist, Mount Vernon, for Cement Distributors, Inc.
This is a review of two separate judgments of the Thurston County Superior Court reversing and remanding an order of the Washington Public Service Commission.
The Chicago, Milwaukee, St. Paul & Pacific Railroad Company, hereinafter called 'Milwaukee,' sought to acquire portions of the outstanding common carrier permit (motor carrier) held by D. A. Whitley, Inc., hereinafter called 'Whitley.'
Whitley was the holder of permit No. 3883, which authorized, inter alia, the following service:
'Intrastate, irregular route, nonradial service as a carrier of Heavy Machinery; Building Materials; and Cement in bulk in tank or bottom dump vehicles or similar specialized equipment in the State of Washington; * * *.'
Milwaukee desired to acquire these rights to supplement its common carrier permit No. 16591, granting it limited intrastate motor carrier rights between Beverly, Washington and the Wanapum Dam site; one objective being to develop a coordinated rail and motor carrier service to construction sites at a distance from railheads.
At the hearing before the Public Service Commission, on the application for the transfer of the enumerated rights under the Whitley permit to Milwaukee, one group of intervenors including Herrett Trucking Company, Inc., hereinafter called 'Herrett,' protested the transfer of the right to haul heavy machinery and building materials; and another group of intervenors including Cement Distributors, Inc., hereinafter called 'Cement Distributors,' protested the transfer of the right to haul bulk cement.
The Public Service Commission rule 1 applicable to our present inquiry is Rule 21(g), which is as follows:
'Only such permit rights as can be shown to have been in reasonably active and regular use will be transferred.
Generally, a period of only one year immediately prior to the date of the application will be considered, but regard will be had for changing circumstances. Dormant rights will not be transferred unless public need for the service can be shown.'
The Commission found that the intrastate operating rights of Whitley, as a carrier of heavy machinery and building materials, 'have been reasonably active and regularly used,' but that the rights relative to the hauling of cement in bulk in tank or bottom dump vehicles or similarly specialized equipment were dormant.
However, the Commission further found that:
'Public need for the services provided under the dormant rights has been shown by the applicant within the purview of Rule 21(g) of the rules and regulations governing motor freight carriers as follows: Cement in bulk in tank or bottom dump vehicles or similar specialized equipment from railheads to job sites in the State of Washington.' ( No. 11)
The order of the Commission was that the application for the transfer of rights under Whitley's common carrier permit No. 3883 to Milwaukee, the holder of common carrier permit No. 16591, be granted in part and that permit No. 16591 be amended and reissued.
The amended and reissued permit was then set forth in full. The portion with which we are concerned authorized service by Milwaukee as follows:
'* * * Irregular route, non-radial service as a carrier of Heavy Machinery; and Building Materials in the State of Washington; Cement in bulk in tank or bottom dump vehicles or similar specialized equipment from rail heads to job sites in the State of Washington. * * *'
It will be noted that with reference to cement in bulk, the Commission has limited the general authorization in the Whitley permit to hauls 'from rail heads to job sites.'
Herrett and certain other intervenors obtained a writ of review from the Superior Court for Thurston County, attacking the transfer of the Whitley rights to haul heavy machinery and building materials; and that court reversed and remanded the order of the Commission. Whitley and Milwaukee appeal to this court from that judgment as does the Commission.
Cement Distributors and certain other intervenors also secured a writ of review from the Superior Court for Thurston County, attacking the transfer of the Whitley rights to haul cement in bulk; and that court reversed and remanded the order of the Commission. Whitley and Milwaukee appeal to this court from that judgment, as does the Commission.
We have before us the consolidated appeals from the two judgments.
The findings of fact of the Commission are by statute prima facie correct, and the burden is on the one attacking the order to show that it is unreasonable or unlawful. RCW 81.04.430; see also RCW 80.04.170 ().
In discussing the weight to be accorded the trial court's findings on a review of administrative action, we said in Department of Transportation v. Snohomish County (1949), 35 Wash.2d 247, 249, 212 P.2d 829, 831:
We have before us a different situation, with reference to each of the three classifications: building materials, heavy machinery, and cement in bulk.
As to the hauling of building materials, the question is whether there is evidence to sustain the Commission's finding that the intrastate operating rights of Whitley have been 'reasonably active and regularly used.'
The trial court, after its examination of the record, concluded that there had been no reasonably active and regular use under the intrastate permit under either the classification of building materials and heavy machinery and that the permit, as to those classifications, was nontransferable.
Our examination of the record satisfies us that the trial court was correct as to the permit for the hauling of building materials.
The Commission, in its summary of the evidence, said:
'Transferor has been actively engaged in the transportation of building materials such as structural steel and wooden and steel forms for missile bases in the Beverly and Royal slope areas. * * *'
This is misleading and immaterial, because the hauls referred to were made after the application for the transfer, and the Commission's own rule (rule 21(g), supra) infers that only use before an application for transfer will be considered on the issue of dormancy. Its own notice of hearing 2 on an application for transfer reflects this position.
In an unreported proceeding (Washington Utilities and Transportation Commission v. Chester E. Davis (hearing No. 4274) Order M. V. 75915) Davis sought to transfer his rights under a permit to haul heavy machinery and the Commission found that right to be dormant and commented that little, if any weight could be given to movements of heavy machinery occurring after the permit holder had entered into negotiations to transfer it. The Commission had clearly in mind that a transferor should not be permitted to buttress its case for transfer by activities subsequent to the application.
Apart from the hauls of building materials, made after the application for the transfer, the record simply does not support a finding of 'active and regular use,' and we agree with the trial court that Whitley's rights to haul building materials were not subject to transfer within the purview of Rule 21(g).
The situation with reference to the rights to haul heavy machinery is quite different. The Commission's summary of evidence also states:
'* * * An examination of transferor's Exhibit 1, * * * shows that the transferor engaged in the hauling of heavy machinery throughout the State of Washington in 1959. * * *'
That statement, in its use of the words 'throughout the State of Washington,' is likewise misleading because while exhibit No. 1 does show substantial movements of heavy machinery in eastern Washington during 1959, 3 it discloses hauls of heavy machinery in western Washington. This the Commission concedes in its brief.
It does not...
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