Manlowe Transfer & Distributing Co., Inc. v. Department of Public Service

• Decision Date: 05 August 1943
• Docket Number: 28879.
• Court: Washington Supreme Court
• Parties: MANLOWE TRANSFER & DISTRIBUTING CO., Inc., v. DEPARTMENT OF PUBLIC SERVICE et al.

140 P.2d 287

18 Wn.2d 754

MANLOWE TRANSFER & DISTRIBUTING CO., Inc., v. DEPARTMENT OF PUBLIC SERVICE et al.

No. 28879.

Supreme Court of Washington

August 5, 1943

Department 2.

Proceeding by the Manlowe Transfer & Distributing Company, Inc., against the Department of Public Service of Washington, Don G. Abel Director, and others, constituting the members of the Department of Public Service of Washington, to review an order of the Department regarding certain rates applied to shipments of sugar. From a judgment affirming the order of the Department, Manlowe Transfer & Distributing Company Inc., appeals.

Reversed and remanded with directions in part and affirmed in part.

Appeal from Superior Court, Thurston County; D. F Wright, judge.

Vanderveer Bassett & Geisness, of Seattle, for appellant.

Smith Troy and Hugh A. Dressel, both of Olympia, for respondents.

ROBINSON Justice.

The department of public service originated this cause by filing a complaint, charging the appellant with a number of violations of the laws and regulations governing its forwarding business. Hearings were held by the department, and findings, conclusions, and an order were made as to certain rates applied to shipments of sugar. The matter comes here on appeal from a judgment entered on a review of the order by the superior court. In this opinion, we will refer to the department as though it were the sole respondent.

The questions involved in this appeal are not satisfactorily stated in appellant's brief, because, as stated, they, to some degree, assume as true matters which are not sustained by the evidence. The respondent department, in its brief, makes no counter-statement of the questions involved, as required by rules of court, but, after pointing out that the court made no findings of its own, but merely ordered, adjudged, and decreed 'that the findings and order of the Department of Public Service of Washington, complained of * * *, be and the same hereby are in all respects affirmed,' quotes the appellant's assignments of error and argues that the first three cannot be considered. These assignments are as follows:

'1. The court erred in finding that the Western States Grocery sugar was moving in intrastate commerce.

'2. The court erred in finding that the movement of sugar from Seattle to the Spokane warehouse of the refinery's agent was intrastate commerce.

'3. The court erred in finding that the transportation of sugar from Seattle to the Spokane warehouse for 'Lafferty' was intrastate commerce.

'4. The court erred in affirming the order of the Department of Public Service to which the writ of review in this cause was directed.'

It is the position of the respondent that, since the superior court made no specific findings, Assignments 1 to 3, inclusive, may not be considered, and it is further contended that Assignment No. 4 raises only a very narrow question, since it is said:

'The superior court can only be in error in affirming the Department's findings and order if the findings are:

'1. Not supported by substantial evidence

'2. Arbitrary and capricious.

'3. In error as a matter of law.'

Since the court, in effect, adopted the departmental findings as its own, we think it would be over technical to hold that the first three assignments may not be considered. Nor do we agree with the position the respondent takes as to Assignment No. 4. To sustain that position, the respondent cites a number of opinions of this court, for the most part rendered in cases arising under the unemployment compensation act, such as: In re St. Paul & Tacoma Lumber Co., 7 Wash.2d 580, 110 P.2d 877, and In re Foy, 10 Wash.2d 317, 116 P.2d 545, which cases have no direct bearing in the matter, since they are somewhat dependent upon the express wording of that statute. We are not aware of any statute or decision of this court which requires it to accept a finding of the department of public service merely because it is supported by substantial evidence. The rule laid down by the court as to the effect to be given on review to the findings of the department of public service in State ex rel. Model Water & Light Co. v. Department of Public Service, 199 Wash. 24, 90 P.2d 243, is controlling. It reflects, as the opinion in that case shows, a great number of our previous decisions, and has been applied and quoted in a number of subsequent opinions. See, for example, State ex rel. Oregon-Washington R. & N. Co. v. Walla Walla County, 5 Wash.2d 95, 104 P.2d 764, in which it is quoted and reaffirmed. As stated in State ex rel. Model Water & Light Co. v. Department of Public Service, supra [199 Wash. 24, 90 P.2d 249], the rule is as follows: '* * * The findings of the department are to be given the same weight accorded to any impartial tribunal, and may not be overturned unless the clear weight of the evidence is against its conclusions, or unless it has mistaken the law applicable to the matter adjudicated, or, as sometimes expressed, unless the findings show evidence of arbitrariness and disregard of the material rights of the parties to the controversy. * * *'

If the clear weight of the evidence is against the finding of the department, it will be set aside by the reviewing court, even though it be supported by substantial evidence. When it is remembered that, in many of these cases, the complaint is brought by the department, as it was in this case, and the department is, therefore, in effect, both the prosecutor and the finder of the facts, some substantial power of review as to facts must be left to the courts unless we are to abandon the fundamental safeguards of our jurisprudence. That this court has not abandoned these fundamentals is clearly shown by the recent en banc decision in State ex rel. Bohon v. Department of Public Service, 6 Wash.2d 676, 108 P.2d 663, in which the court, en banc, with but one judge dissenting, remanded a matter to the department, on the ground that the findings were not sufficienty definite to permit of intelligent review.

We quote the findings made by the department, attaching a number to each for convenience in reference:

(1) 'The Respondent transported 19 shipments of sugar from Seattle to Spokane at rates which amounted to a total under-charge of approximately $1800 from the applicable legal tariff rates. These shipments were all transported for one shipper, Balfour-Guthrie Company at Seattle, to consignees at Spokane.

(2) 'Respondent contended that movement of this sugar was interstate in character and said that the movement should be governed by interstate rates and not those in the Department of Public Service' tariffs or other tariffs of the Respondent applicable to intrastate traffic. The facts regarding this sugar movement, as brought forth in the record, are as follows: The sugar is produced in the Philippine Islands and is refined there by the Insular Sugar Refining Company. Balfour-Guthrie Company are their selling agents on the Pacific Coast. The sugar is sent by steamer from the Philippine Islands to Seattle and the ocean-bill of lading shows that it is consigned to the order of the shipper (Insular Sugar Refining Company) notify Balfour-Guthrie and and Company. The sugar is discharged at the East Waterway Dock from the steamer in Seattle. This is a public dock and warehouse. At the East Waterway Dock the sugar is held in the storage account of Balfour-Guthrie Company and that company pays the storage charges.

(3) 'When Balfour-Guthrie Company make sales of the sugar, they make out a sales invoice showing a sale from Balfour-Guthrie and Company to the buyer at Spokane, if that is the buyer's location. The shipper in Manila does not know who the purchaser of his sugar or any portion of the same will be. It is the shipper's intention that the shipment move to Seattle to Balfour-Guthrie and Company whom he knows will probably sell it. The Insular Sugar Refining Corporation owns the sugar until it is sold in Seattle by Balfour-Guthrie and Company to some purchaser at another point in Washington. There is no indication on any of the shipping documents, when the sugar leaves Manila, that any part of the shipment will go to any consignee in Spokane or to any other point than to Seattle. The sugar is held at the East Waterway Dock in the regular stock of goods of the Balfour-Guthrie Company. Orders are filled from it as it is sold and it moves out of the East Waterway Dock as it is sold.

(4) 'The representative of the East Waterway Dock testified that when they received a delivery order from Balfour-Guthrie and Company to deliver a certain quantity of sugar to the Manlowe Transfer & Distributing Company that they did not know that the sugar delivered on a particular delivery order came from any particular vessel; that they tried to deliver the first sugar that came in as the first to go out; that some sugar stays in storage between five and six months between the time it is delivered by the vessels and the time it moves out of the warehouse.

(5) 'He further testified that Manlowe Transfer & Distributing Company asked for steamer references to put on their bills of lading but that there was no connection between the steamer reference and the particular sugar that moved on that bill of lading and the record further shows this to be a fact.

(6) 'There was testimony in the record that the shipments of sugar moving from Balfour-Guthrie Company, Seattle, to the Western States Grocery, Spokane, were delivered under a contract between the Safeways Stores and the Insular Sugar Refining Corporation; that this sugar was shipped from the Philippine Islands to the order of the Insular Sugar Refining Corporation notify Safeways Stores at...