Kitsap County Transp. Co. v. Manitou Beach-Agate Pass Ferry Ass'n

• Decision Date: 02 March 1934
• Docket Number: 24919.
• Citation: 176 Wash. 486,30 P.2d 233
• Court: Washington Supreme Court
• Parties: KITSAP COUNTY TRANSP. CO. v. MANITOU BEACH-AGATE PASS FERRY ASS'N et al.

30 P.2d 233

176 Wash. 486

KITSAP COUNTY TRANSP. CO. v. MANITOU BEACH-AGATE PASS FERRY ASS'N et al.

No. 24919.

Supreme Court of Washington

March 2, 1934

Department 2.

Appeal from Superior Court, King County; Robert S. Macfarlane Judge.

Suit by Kitsap County Transportation Company against Manitou Beach-Agate Pass Ferry Association, a corporation, and others.From an adverse decree, defendants appeal.

Affirmed.

Henry Henry & Pierce and Hylas E. Henry, all of Seattle, for appellants.

Philip D. Macbride, George W. Williams, and Byers & Byers, all of Seattle, for respondent.

BLAKE Justice.

This action presents another chapter in the history of the problem of transportation between Seattle and Bainbridge Island.For many years prior to the enactment of chapter 248, p. 382, Laws of 1927(Rem. Rev. Stat. §§ 10361-1,10361-2), the plaintiff had operated steamboats, affording regular vehicular, passenger, and freight service between Seattle and points on the island.Pursuant to the terms of that act, certificates of convenience and necessity were issued to plaintiff covering its operations between Seattle and the various points on the island to which its service extended.Subsequently the rights under these several certificates were consolidated into one certificate issued by the department of public works.Prior and subsequent to the issuance of the certificates, plaintiff maintained only one vehicular ferry.This plied, on regular schedule, between Seattle and Port Blakely, which is located near the southerly end of the island.

The permanent population of the island is approximately three thousand, about one-third of whom reside in the northerly half of the island.A considerable number of the residents of the island, becoming dissatisfied with the vehicular ferry service, persuaded the Puget Sound Navigation Company to apply for a certificate of convenience and necessity for the installation of vehicular ferry service between Seattle and Manitou Beach, a point on the island about four miles north of Port Blakely.The department granted the application.Thereupon Kitsap County Transportation Company, the plaintiff here, sought review of the department's order in this court.Kitsap County Transportation Co. v. Department of Public Works,170 Wash. 396, 16 P.2d 828.

In that case, the court reversed the order of the department, holding that the certificate of convenience and necessity granted to the Puget Sound Navigation Company violated the rights of the plaintiff herein under its certificate of convenience and necessity theretofore issued.The court held that, even though the service rendered by plaintiff might be inadequate, a competing company could not be granted the right to enter the field until the department had determined the service was inadequate and the plaintiff had failed to improve the service after the department had ordered it to do so.

After that decision was rendered, the defendantManitou Beach-Agate Pass Ferry Association was organized by some twenty 'property owners, residents and taxpayers of Bainbridge Island.'(This defendant will, for convenience, be hereafter referred to as the ferry association.)The ostensible purpose was 'to create a social, benevolent and charitable organization under the provisions of Rem.Comp. Statutes, sections 3872, et seq.'The real purpose was to establish and maintain a vehicular ferry service between Seattle and Manitou Beach.

To that end, in January, 1933, the ferry association filed with the department of public works a petition asking that the department orderKitsap County Transportation Company to furnish ferry service between Seattle and Manitou Beach.On June 17, 1933, while that application was pending Before the department of public works, the ferry association entered into a charter party with Puget Sound Navigation Company for the steam ferry Quilcene.Pursuant to the terms of the charter, the Quilcene was delivered to the ferry association on June 24th.The ferry was scheduled to make ten round trips per day from Seattle to Manitou Beach.It had made three round trips on June 24th, when the service was interrupted by the issuance of a temporary restraining order out of the superior court of King county on the complaint of plaintiff herein.After answer a trial was had resulting in a decree permanently enjoining defendants from maintaining ferry service between Seattle and Manitou Beach.From the decree so entered, defendants appeal.

Appellants make eight assignments of error, which, for discussion, may be grouped under the following heads: (1) Constitutionality of the act(chapter 248, p. 382,Laws 1927); (2) extent of respondent's rights under its certificate of convenience and necessity; (3) rights of the ferry association and its members to maintain a ferry service.

I.Appellants contend that chapter 248, p. 382, Laws of 1927, is unconstitutional, in that (a) it permits a monopoly in violation of section 22, article 12, of the state Constitution;(b) it grants special privileges and immunities in violation of section 12, article 1, of the state Constitution;(c) it denies appellants personal rights guaranteed by section 3, article 1, of the state Constitution and by the Fourteenth Amendment to the Constitution of the United States.

The act is but an exercise of the power of the state recognized and exercised from time immemorial, to control travel over and on its navigable streams and waters.Mills v. County of St. Clair,49 U.S. (8 How.) 569, 581, 12 L.Ed. 1201;Norris v. Farmers' & Teamsters' Co.,6 Cal. 590, 65 Am. Dec. 535;Charles River Bridge v. Warren Bridge et al.,36 U.S. (11 Pet.) 420, 607, 9 L.Ed. 773.In the first case, it is said that: '* * * the establishment and regulation of ferries across navigable streams is a subject within the control of the government, and not matter of private right; and that the government may exercise its powers by contracting with individuals.We deem this general principle not open to controversy.'

In the second case, the court says:

'At common law, no bridge or ferry could be erected so near another, bound by law to be provided with attendance, crafts, etc., as to draw away its profits. * * *

'The reason for this, as given by Mr. Blackstone, is that the owner of a ferry is bound to the public to keep it in repair and readiness for the use of the citizens, and that he cannot do if his franchise may be invaded, or if the income of the bridge or ferry may be curtailed by diverting passengers by means of a rival unauthorized establishment of a like kind.Therefore, although the public convenience is the occasion of granting franchises of this nature, and, for example, the ferry established on the road chartered is publici juris, yet the property is private, and consequently an injury to it may be the subject of an action, for no person could be expected to serve the public by bestowing his time, labor and money in establishing a ferry or erecting a bridge, if its value could be immediately destroyed by the caprice or malice of private persons, in adopting means of drawing away the custom to some establishment of their own.'

In the third case, Mr. Justice Story, in a dissenting opinion, said: 'No sound lawyer will, I presume, assert that the grant of a right to erect a bridge over a navigable stream, is a grant of a common right.Before such grant, had all the citizens of the state a right to erect bridges over navigable streams?Certainly they had not; and, therefore, the grant was no restriction of any common right.It was neither a monopoly; nor, in a legal sense, had it any tendency to a monopoly.It took from no citizen what he possessed Before ; and had no tendency to take it from him.It took, indeed, from the legislature the power of granting the same identical privilege or franchise to any other persons.But this made it no more a monopoly, than the grant of the public stock or funds of a state for a valuable consideration.'

Our own decision in Kitsap Transportation Co. v. Department of Public Works, supra, is declaratory of this principle.In State ex rel. Department of Public Works v. Inland Forwarding Corporation,164 Wash. 412, 2 P.2d 888, this court held valid, as against the constitutional objections raised here, chapter 111, p. 338, Laws of 1921, relating to the issuance of certificates of convenience and necessity to carriers using the public highways.

II.But appellants contend that a certificate of necessity does not amount to a franchise to operate a ferry.Whether it be a franchise under conventional definitions of the word, we think immaterial.As was said by the Supreme Court of Montana, in Willis v. Buck,81 Mont. 472, 263 P. 982, 984, having under consideration a certificate to a carrier on state highways: 'Whether the certificate held by the plaintiff, Willis, be considered as a license, a permit, or a franchise, it is essentially a species of property, the value of which is dependent upon the exclusiveness of the privilege conferred.'

This court has repeatedly characterized such certificates to carriers on the highways as franchises, and has protected the owners thereof on the theory that such certificates constituted vested property rights.Davis & Banker v Nickell,126 Wash. 421, 218 P. 198;Davis v. Clevinger,127 Wash. 136, 219 P. 845;Davis v. MacKay,128 Wash. 333, 222 P. 491;Chelan Transfer Co. v. Foote,130 Wash. 511, 228 P. 297;Independent Truck Co. v. Wright,151 Wash. 372, 275 P. 726.Finally, in Kitsap County Transportation Co. v. Department of Public Works, supra, this court held this very certificate of convenience and necessity to be a right which could not be impaired through the granting by the department of public works of a certificate...