North Bend Stage Line, Inc. v. Denney

• Decision Date: 14 August 1929
• Docket Number: 21900.
• Citation: 279 P. 752,153 Wash. 439
• Parties: NORTH BEND STAGE LINE, Inc., v. DENNEY, Director, et al. GREAT NORTHERN RY. CO. et al. v. SAME.
• Court: Washington Supreme Court

279 P. 752

153 Wash. 439

NORTH BEND STAGE LINE, Inc., v. DENNEY, Director, et al.

GREAT NORTHERN RY. CO. et al. v. SAME.

No. 21900.

Supreme Court of Washington

August 14, 1929

Department 1.

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

Proceeding by the North Bend Stage Line, Inc., and by the Great Northern Railway Company and others, against John C. Denney, Director and others. From the judgment, the North Bend Stage Line appeals. Affirmed.

Poe Falknor, Falknor & Emory, of Seattle, Kelly & MacMahon, of Tacoma, and W. R. Crawford, of Seattle, for appellant.

John H Dunbar, H. C. Brodie, and Cleland & Clifford, all of Olympia for respondents.

BEALS, J.

The parties to this proceeding, with the exception of those named as members of the department of public works of Washington are common carriers of passengers and express operating within this state either as proprietors of stage lines or of railroads.

Respondent Washington Motor Coach Company, original applicant herein, has been for some time operating, directly under certificate of public convenience and necessity No. 400, and indirectly, through subsidiary companies holding other similar certificates, an extensive passenger and express service throughout eastern Washington. The Northern terminus of this system is at Oroville, the eastern terminus at Spokane, and the southern terminus at Yakima. Certificate No. 400 authorizes its holder to operate as far to the west as the town of Easton, and this proceeding was initiated by an application filed by respondent with the department of public works for an extension of the service allowed under its certificate No. 400 by permitting the holder of that certificate to carry passengers and express through Easton to the westward and along the Sunset Highway to Seattle. The applicant further requested that its certificate No. 400 be consolidated with certificate No. 107 held by Puget Sound Motor Coach Company, one of its subsidiary corporations, the last-mentioned certificate covering a specified route from Seattle to Kirkland, thence southeasterly a short distance along the Sunset Highway to its intersection with the Solberg Road, thence along this road to Carnation, all within King county.

Appellant North Bend Stage Line, Inc., a corporation, the holder of certificate No. 100 authorizing the carriage of passengers and express along the Sunset Highway between Seattle and Easton, and the other transportation companies named in the caption hereof, resisted before the state department of public works the granting of the application above referred to. After a full hearing, the department entered an order permitting the enlargement of certificate No. 400 as prayed for by its holder, with the restriction that under the amended certificate no local service would be permitted between Seattle and Easton, except such service as was formerly authorized under certificate No. 107 between Seattle, Carnation, and intermediate points.

Appellant by an appropriate proceeding brought this order before the superior court for Thurston county for review. A hearing before that tribunal resulted in an affirmance of the order entered by the department, and from the judgment of affirmance appellant alone appeals to this court.

Appellant, for more than five years, has been operating under its certificate No. 100 between Seattle on the west and Easton on the east by way of Falls City and North Bend. This route, as a whole, was not served by the holder of any other certificate. In enlarging respondent's certificate No. 400 and consolidating the same with certificate No. 107, the department was of the opinion that appellant's rights were preserved by the limitation attached to certificate No. 400, as amended and enlarged, prohibiting the holder thereof from carrying passengers or express, other than through traffic, between Seattle and Easton, save in so far as such carriage had been theretofore permitted under certificate No. 107. In support of its order, the department entered elaborate findings of fact, which are now before us.

Appellant assigns error upon the entry of judgment by the superior court affirming the order of the department of public works and upon the failure of that court to find that the order above referred to was unreasonable, arbitrary, and capricious, contrary to the weight of the evidence, and in contravention of existing laws and of the rights of appellant as guaranteed by the Constitution of the United States and by that of the state of Washington. The assignments of error are so closely related that they are properly discussed and considered together.

Respondent under certificate No. 400 serves the territory outlined roughly by the cities of Spokane, Quincy, Wenatchee, Oroville, Yakima, and Easton. Respondent operates between other points under various certificates. Passengers desiring to proceed by stage from Spokane to points west of Wenatchee change stages and spend the night at that city. It is respondent's desire, under the extension of service for which it petitioned, to run its stages directly through from Wenatchee to Seattle.

Appellant's officers, testifying on its behalf, stated that appellant would be willing to so arrange its schedules as to connect at Easton with respondent's stages and to participate in such joint rates as might lawfully be established. Appellant earnestly contends that no sufficient convenience or necessity for the establishment of a through service between Wenatchee and Seattle was shown, and that the order of the department enlarging respondent's certificate No. 400 was improvidently entered, and should be set aside.

Appellant concedes that it would be more convenient for a passenger to be able to remain on one stage, without the necessity of transfer of person or baggage, during the entire trip between Wenatchee and Seattle, and thereby avoid the change from one stage to another at Easton. Appellant urges, however, that mere convenience alone will not support the issuance of a certificate covering territory already served by another certificate holder, and that, before a new certificate can be issued or an old one enlarged, a necessity must also be found to exist.

We think it is clear, as a general proposition, that a through service is the best service, and that transfers of passengers and baggage from one stage to another should be eliminated whenever possible, having due regard to proper economy of operation and legal rights existing in favor of certificate holders. The department found that 'public convenience and necessity require the furnishing and operating of passenger and express service by motor propelled vehicles between all points in the territory served under certificate of public convenience and necessity number 400 and Seattle,' and that the connected service offered by appellant would not be in the public interest.

It does not appear from the record, nor did the department find, that appellant's service between Seattle and Easton is inadequate or that the territory served has not been adequately cared for by appellant.

Section 6390, Rem. Comp. Stat., provides that the department may authorize an applicant to operate in a territory already served by a certificate holder only when the existing service is not satisfactory to the department. Under this section of the code appellant contends that the judgment of the superior court affirming the order of the department must be reversed, unless it be concluded that respondent's certificate No. 400 as enlarged does not permit respondent 'to operate in a territory already served.' Appellant has heretofore, in so far as traffic between Seattle, Falls City, North Bend, and Easton is concerned, enjoyed a monopoly. This is a valuable right which must not be infringed upon save strictly in accordance with law, and then only when existing facts justify such infringement.

It is, of course, true that appellant, as long as respondent's service ends at Easton, enjoys the opportunity of carrying persons who ride on respondent's stages as far west as Easton, thence to Seattle, and also of transporting persons who desire to go from Seattle by stage to Eastern Washington to Easton, where such persons may take respondent's stages to their respective destinations.

The question of whether or not this undoubtedly valuable and profitable business is one to which appellant under the circumstances as they now exist, and as they existed at the time of initiation of this proceeding, has a lawful...