Pacific Northwest Traction Co. v. Department of Public Works of Washington

• Decision Date: 23 April 1929
• Docket Number: 21649.
• Citation: 151 Wash. 659,276 P. 566
• Parties: PACIFIC NORTHWEST TRACTION CO. v. DEPARTMENT OF PUBLIC WORKS OF WASHINGTON et al.
• Court: Washington Supreme Court

276 P. 566

151 Wash. 659

PACIFIC NORTHWEST TRACTION CO. v. DEPARTMENT OF PUBLIC WORKS OF WASHINGTON et al.

No. 21649.

Supreme Court of Washington

April 23, 1929

Department 2.

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

In proceeding before the Department of Public Works of Washington relative to the issuance of a certificate of public convenience and necessity for motor vehicle passenger and express service, the Department issued the certificate to B. Krakenberger, and the Pacific Northwest Traction Company caused the order to be reviewed by the Superior Court. The order was affirmed, and the Pacific Northwest Traction Company appeals. Reversed and remanded, with directions.

Cleland & Clifford, of Olympia, for appellant.

John H Dunbar and H. C. Brodie, both of Olympia, and Charles T Peterson and G. E. Peterson, both of Tacoma, for respondents.

MAIN J.

This is an appeal from a judgment of the superior court sustaining an order of the Department of Public Works relative to the issuance of a certificate of public convenience and necessity for motor vehicle passenger and express service between the cities of Seattle and Everett. The Pacific Northwest Traction Company is the appellant, and B. Krakenberger the respondent. During the latter part of October, 1927, the state completed and opened to public travel 12 or 15 miles of new paving extending from the line between the counties of King and Snohomish north to the city of Everett. The result of the opening of this highway was to make an additional paved road between the two cities mentioned. The portion to the south of the dividing line between the two counties had a number of years previously been paved by King county and extends to the city of Seattle. The newly completed pavement, together with the paving done prior by King county, constitutes a continuous pavement between Seattle and Everett, and is referred to as the 'new Pacific Highway.' Prior to the opening of this highway the only continuous highway between the two cities was through Bothell, and that road is generally referred to as the 'old Pacific Highway.' These two roads at the most distant point are approximately 6 miles apart. From there they gradually converge to the north until the come together near the southern limits of the city of Everett. To the south they converge and come together in the city of Seattle. The distance between the terminiof the old road was 31 8/10 miles, over the new 28 miles.

Krakenberger at the time he applied for the certificate of public convenience and necessity over the new road, was not and had not at any time previously been engaged in the business of transporting passengers and express by motor vehicle.

The Pacific Northwest Traction Company and its predecessors in interest have for several years furnished motor vehicle passenger and express service over the old highway under a certificate of public convenience and necessity. It also had a certificate and operated the same service from Seattle to the north over the pavement put in by King county to the Snohomish county line and from thence north 3 or 4 miles over a gravel road paralleling the new pavement. Shortly after the opening of the new pavement, there were four or five applications for certificates of convenience and necessity. The department issued the certificate to Krakenberger. The Pacific Northwest Traction Company caused the order to be reviewed by the superior court of Thurston county, where, as above stated, it was affirmed, and the appeal is from that judgment. The other applicants are not before us, and no mention need be made of them.

The controlling question is whether the Pacific Northwest Traction Company was as a matter of law entitled to have issued to it a certificate of public convenience and necessity to give motor vehicle passenger and express service between the two cities mentioned over the new highway.

Section 4 of chapter 111 of the Laws of 1921, p. 341, in part provides that: '* * * The Commission shall have power, after hearing, when the applicant requests a certificate to operate in a territory already served by a certificate holder under this act, only when the existing auto transportation company or companies serving such territory will not provide the same to the satisfaction of the Commission, * * * to issue said certificate as prayed for. * * *'

Under this statute, a certificate holder in territory already served is entitled to priority as to a certificate in that territory. State ex rel. United A. T. Co. v. Dept. of Public...