Horluck Transp. Co. v. Eckright, 35159

• Decision Date: 12 May 1960
• Docket Number: No. 35159,35159
• Citation: 56 Wn.2d 218,352 P.2d 205
• Parties: HORLUCK TRANSPORTATION COMPANY, Inc., Appellant, v. Robert B. ECKRIGHT et al., Respondents.
• Court: Washington Supreme Court

Page 218

56 Wn.2d 218

352 P.2d 205

HORLUCK TRANSPORTATION COMPANY, Inc., Appellant, v. Robert B. ECKRIGHT et al., Respondents.

No. 35159.

Supreme Court of Washington, Department 2.

May 12, 1960.

Garland, Garland & Bishop, by Marion Garland, Jr., Bremerton, for appellant.

Merrill Wallace, Bremerton, for respondent.

HILL, Judge.

This is an action to enjoin a voluntary association from operating a sixteen-passenger 'Metro' bus without a certificate of 'public convenience and necessity.'

The question presented is whether a voluntary association of individuals, owning a bus and operating under the conditions hereinafter indicated, is either a common carrier or an auto transportation company within the purview of RCW, chapter 81.68.

The association is, concededly, operating without a certificate from the state public service commission, as required by RCW 81.68.040, 'declaring that public convenience and necessity require such operation.'

The voluntary association, above referred to, is known as the Sidney Road Riders Club. Its bus is operated one round trip each work day between Sidney Road (Port Orchard) and the Puget Sound Naval Shipyard at Bremerton, for the purpose of taking its members to work in the morning and returning them to their homes in the evening. Only persons who work in the Puget Sound Naval Shipyard can be members of the club, and they are the only persons carried on the bus; each member pays a fare of forty cents each day he rides.

We have no difficulty in holding with the trial court that this voluntary association is not a common carrier. The leading case on common carriers is probably Cushing v. White, 1918, 101 Wash. 172, at page 174, 172 P. 229, at page 230, L.R.A.1918F, 463, and this definition appears therein:

'A common carrier of passengers is one who undertakes for hire, to carry all persons indifferently who may apply for passage. To constitute one a common carrier it is necessary that he should hold himself out as such. * * *' Thompson, Carriers of Passengers, p. 26, note 1.'

This is, perhaps, an oversimplification, but it seems clear the association is not a common carrier. On the order hand, it seems to fit squarely within the definition of an auto transportation company, as stated in RCW 81.68.010:

'The term 'auto transportation company' means every person [a voluntary association of persons known as the Sidney Road Riders Club] * * * owning, controlling, operating, or managing any motor propelled vehicle not usually operated on or over rails [a sixteen-passenger-Metro bus], used in the business or transporting persons [the members of the Sidney Road Riders Club] * * * over any public highway in this state between fixed termini [over the public highway between Port Orchard and the Puget Sound Naval Shipyard in Bremerton] or over a regular route. * * *' (Italics ours.)

Even the exceptions are significant: Persons who own, control, operate, or manage 'taxicabs, hotel buses, or school buses' are not included in the definition.

If there is any element of the definition that is open to question in this case, it is whether the bus is 'used in the business of transporting persons.' Our leading case on that phase of the definition is Strickler v. Schaaf, 1939, 199 Wash. 372, 91 P.2d 1007, 1009, 123 A.L.R. 226. It states that isolated or occasional transportation of persons does not constitute 'engaging in business.' The transportation, here, is neither isolated nor occasional; the bus operates every working day.

It is clearly the intent of RCW, chapter 81.68 that the public service commission shall not only exercise control over common carriers, but over those which are in the business of regularly transporting persons for compensation of public highways, inasmuch as RCW 81.68.040 makes no mention of common carriers, but provides that,

'* * * No auto transportation company [the voluntary association known as the Sidney Riders Road Club] shall hereafter operate for the transportation of persons [the members of the Sidney Riders Road Club] for compensation [forty cents for a round trip] between fixed termini [Port Orchard and the Puget Sound Naval Shipyard in Bremerton] or over a regular route in this state, without first having obtained from the commission a certificate declaring that public convenience and necessity require such operation. * * *'

As before pointed out, the voluntary association owning and operating the sixteen-passenger 'Metro' bus has no such certificate. A violation of RCW 81.68.040 is made a gross misdemeanor by RCW 81.68.080.

We have repeatedly held that the legislature may regulate the use of the highways for private gain, and that such a regulation is a valid exercise of the police power. Northern Pacific Railway Co. v. Schoenfeldt, 1923, 123 Wash. 579, at page 585, 213 P. 26, and cases cited therein.

We have further discussed the purpose of the act in question in Davis & Banker, Inc. v. Nickell, 1923, 126 Wash. 421, at page 423, 218 P. 198, at page 199, where we said:

'The purpose of the Transportation Act is to permit the establishment of regular and dependable service whereever public necessity and convenience requires. No adequate service can be given without proper equipment, and, as appears here, appellant has invested upwards of $20,000 in equipment to enable it to properly serve the public on this route. An income must be earned, which will cover operating costs and depreciation, and give some return on the investment or the service cannot be long continued. * * *'

The plaintiff, Horluck Transportation Company, Inc., is a common carrier and has a certificate of necessity for the transporation of passengers between Port Orchard and Bremerton, by water only. Its certificate also covers the operation of feeder bus lines throughout the Port Orchard area to connect with its boats operating between Port Orchard and Bremerton.

This is an action to protect the property rights and interests of the plaintiff. The right of the plaintiff to maintain this action has not been questioned. The theory is that the unlawful acts of the defendants, in functioning as an auto transportation company without the requisite certificate, have deprived, and will continue to deprive, the plaintiff of the revenues and earnings which might otherwise have accrued to it; and this is an interference with its property which constitutes a damage to it specially. Northern Pacific Railway Co. v. Schoenfeldt, supra; State ex rel. Seattle & Rainier Valley Railway Co. v. Superior Court, King County, 1923, 123 Wash. 116, 212 P. 259; Puget Sound Traction, Light & Power Co. v. Grassmeyer, 1918, 102 Wash. 482, 173 P. 504, L.R.A.1918F, 469. In the last cited case it is said (102 Wash. at page 490, 173 P. at page 506),

'* * * the plaintiff has a franchise granted it by the sovereign power authorizing it to carry passengers for hire on the streets of the city of Bellingham. This franchise is property, and any unlawful interference therewith is actionable. It is true the franchise is not exclusive in the sense that the sovereign power may not grant a similar right to another, but it is exclusive against any one who assumes to exercise the privilege of carrying passengers in the absence of authority or in defiance of the laws regulating the privilege. To do so is unlawful, and since the plaintiff is injuriously affected thereby, it is entitled to injunctive relief. * * * [citing cases and authorities].'

(The parties and the trial court having apparently attached no significance to the fact that the plaintiff's certificate is for transportation between Port Orchard and Bremerton 'by water only,' we have, likewise, given it no consideration in arriving at our conclusion that it was entitled to maintain this action.)

The trial court concluded that the 'defendants individually and as members of the Sidney Road Riders Club are not a common carrier,' as defined by the laws of the state of Washington, and, hence, are not required to have a certificate of public convenience and necessity. For that reason the plaintiff's action was dismissed.

This matter is now before us on the appeal of the plaintiff; and, as we have indicated, we have concluded that respondents in operating their bus without a certificate of public convenience and necessity are violation RCW 81.68.040, and that, on the record now before us, the appellant is entitled to the relief requested. The opinion might end here.DP However, the respondents have apparent- ly operated in the belief that certificates of public convenience and necessity are required only of common carriers; and that was the rationale of the dismissal of the appellant's action by the trial court. It should, therefore, be made clear that our hold- ing to the contrary is based not only upon our interpretation of RCW 81.68.040, but upon our own investigation of the pertinent authorities.

Concededly, the public service commission cannot require the respondents to become a common carrier. It has been repeatedly held by the highest authority that a person cannot be compelled to dedicate his property to the public service, as a common carrier for hire, as a condition precedent to being permitted to use the highways in the gainful occupation of hauling passengers or property. Frost & Frost Trucking Co. v. Railroad Commission, 1926, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101, 47 A.L.R. 457; Michigan Public Utilities Commission v. Duke, 1925, 266 U.S. 570, 45 S.Ct. 191, 69 L.Ed. 445, 36 A.L.R. 1105.

On the other hand, it is the universally accepted doctrine that use of the public roads for the conduct of business thereon is an extraordinary use, and, as such, is enjoyed not as a right but as a privilege. That the state may altogether exclude any hauling by a carrier, common or contract intrastate, from its roads is generally taken for granted. Stephenson v. Binford, D.C.Tex.1931, 53 F.2d 509, affirmed 1932, 287 U.S. 251, 53 S.Ct. 181, 77 L.Ed. 288, 87...