Port of Seattle v. Washington Utilities and Transp. Commission

• Decision Date: 21 June 1979
• Docket Number: No. 45133,45133
• Citation: 597 P.2d 383,92 Wn.2d 789
• Parties: The PORT OF SEATTLE, a Municipal Corporation, Appellant, v. The WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION, a State Agency, and the State of Washington, and Western Tours, Inc., a corporation, Respondents.
• Court: Washington Supreme Court

Page 789

92 Wn.2d 789

597 P.2d 383

The PORT OF SEATTLE, a Municipal Corporation, Appellant, v. The WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION, a

State Agency, and the State of Washington, and

Western Tours, Inc., a corporation, Respondents.

No. 45133.

Supreme Court of Washington, En Banc.

June 21, 1979.

As Changed Oct. 11, 1979.

Bogle & Gates, Ronald T. Schaps, Seattle, for appellant.

Slade Gorton, Atty. Gen., John W. Hough, Asst. Atty. Gen., Olympia, Sax & MacIver, Clyde H. MacIver, Daniel M. Caine, James P. Donohue, Seattle, for respondents.

WILLIAMS, Justice.

This is a declaratory judgment action brought by the Port of Seattle (Port) to resolve, among other issues, a conflict of jurisdiction between the Port and the Washington Utilities and Transportation Commission (WUTC). Also involved as a party to the dispute is Western Tours, Inc. (Western Tours). The Port is a municipal corporation organized under the port district laws of the State of Washington, RCW Title 53. The WUTC is an agency created by RCW Title 81. Western Tours is a corporation authorized to do business in this state; it owns and operates motor propelled busses transporting passengers for compensation.

At the center of the controversy is the question of whether the Port has the right to provide or regulate airporter service. The parties have agreed that "airporter service" means the transportation of airline passengers and crew, and their baggage, between Seattle-Tacoma International Airport (Sea-Tac) and points in the surrounding territory.

Western Tours provides airporter service between Seattle and Sea-Tac on a regularly scheduled basis along a regular route over the public highways. This airporter service is one of several different methods of ground transportation to and from Sea-Tac, including other airport bus services, taxicabs, hotel limousine service, and private vehicles left at the airport parking garage. Once upon Port property at Sea-Tac, Western Tours is subject to regulations of the Port governing access by common carriers to the passenger terminal area at Sea-Tac for purposes of discharging and picking up passengers. However, pursuant to a special concession agreement with the Port, Western Tours also has the right to stand and wait at a designated parking area in front of the terminal area and the right to solicit passengers on Port property. In exchange for these rights, Western Tours pays the Port a fee based upon a percentage of airporter revenues. The contract regulates the rates, quality of services, and practices of Western Tours in transporting passengers between Seattle and Sea-Tac. The expiration date of this contract was July 1, 1977.

Western Tours holds a certificate from the WUTC to operate its airporter service. At the request of the Port, the commission included in the certificate issued to Western Tours several provisions which conditioned the effectiveness of the certificate on the existence of satisfactory access arrangements between the Port and Western Tours. The commission reserved the right to cancel the intrastate certificate without a hearing upon receipt of notice that the applicant had failed to obtain or continue in effect the necessary authorization from the Port to maintain adequate passenger service.

In 1975, the Port gave Western Tours its approval to an increase in its airporter service rates. Western Tours then filed these tariff provisions with the WUTC for informational purposes. The commission acted to suspend the fare increase pursuant to RCW 81.04.130 and noted the matter for hearing. The Port filed this action for declaratory judgment and injunctive relief challenging the commission's jurisdiction to regulate the airporter service. The commission agreed to a court stay of further action pending the outcome of the proceeding. The Port, in turn, has refrained from issuing invitations for bids for a new long-term concession agreement for airporter service pending the resolution of this conflict.

Although this dispute was precipitated by the commission's suspension of a fare increase which Western Tours sought, Western Tours has taken the side of the commission in this dispute. Pursuant to RCW 81.68.040, the holder of a certificate issued by the commission is afforded a certain procedural advantage which enables it, upon a sufficient showing of certain facts, to block the issuance of a certificate for service for the same area to another carrier. Western Tours stands to lose this protection if the Port prevails in this jurisdictional dispute.

The case was tried upon an agreed statement of facts. The trial court held that the Port has the authority to control the use of its facilities at Sea-Tac and to contract by concession agreement for uses of those facilities. No party appeals from that portion of the trial court's conclusions. The Port appeals from the trial court's rulings that: airporter service to and from Sea-Tac is not in interstate commerce; the WUTC has exclusive control and jurisdiction over airporter services up to the airport boundaries; and the Port does not have the authority to provide airporter service to Sea-Tac directly, by contract or by charter, or to regulate the "rates, services or practices" of airporter services in their transportation of passengers and baggage outside airport boundaries. The Port also appeals the trial court's finding that Western Tours' airporter service has been adequate and satisfactory to the Port.

The first issue before this court is whether the Port has authority to provide airporter service, either directly or indirectly. As an alternative to entering into a new long-term concession agreement with a carrier for airporter service, the Port is considering the possibility of operating its own airporter service, either by purchase, lease, or charter of vehicles. The Port contends that any airporter service which it provides itself would be immune from WUTC regulation. It is our opinion that the Port is authorized to provide airporter service only to the extent that it may enter into special long-term concession agreements for the provision of such service. We find no authority, however, to support the Port's view that it may provide airporter service by its own operation.

The Port urges that it derives the power to operate its own airporter service from RCW 53.08.020 ¹ and RCW 14.08.

In regard to RCW 53.08.020, the Port contends that airporter busses are "appliances" as referred to in the statute and that "facilities" means everything necessary or convenient to a transportation system. It further contends that airporter service is authorized under the provision permitting the Port to provide all customary services.

The powers granted under RCW 53.08.020 do not expressly authorize the operation of an airporter service. The Port, as a municipal corporation, is limited in its powers to those necessarily or fairly implied in or incident to the powers expressly granted, and also those essential to the declared objects and purposes of the corporation. Christie v. Port of Olympia, 27 Wash.2d 534, 179 P.2d 294 (1947). If there is a doubt as to whether the power is granted, it must be denied. Pacific First Fed. Sav. & Loan Ass'n v. Pierce County, 27 Wash.2d 347, 178 P.2d 351 (1947). P. Lorillard Co. v. Seattle, 8 Wash.App. 510, 507 P.2d 1212 (1973). We do not believe that the power to operate an airporter service is implied in or incident to those powers expressly granted or essential to the purposes of the Port by RCW 53.08.020.

There is no case law which interprets the statutory language in question. However, in State ex rel. Huggins v. Bridges, 97 Wash. 553, 166 P. 780 (1917), this court held that the power to operate a belt railway line is not fairly implied in or incidental or essential to the powers granted pursuant to Rem.Code, §§ 8165-1 and 8165-4. Those sections created port districts and authorized them to acquire, construct, maintain, operate, develop, and regulate a system of harbor improvements and rail and water transfer facilities within such districts. The court declined to hold that the language referring to rail and water transfer facilities impliedly authorized the operation of a belt line railroad. The court reasoned that this language meant "Such adjuncts and appurtenances as are necessary or convenient for the transshipment of commodities between land carriers and water carriers." (Italics ours.) Huggins, at 559. Such an interpretation is clearly at odds with the Port's definition of facilities as Everything necessary or convenient to a transportation system.

Similarly, we do not construe the term "appliance" as used in RCW 53.08.020 to include an airporter bus. Nor do we find airporter service to be a customary service in connection with the operation of the facilities and improvements of the district pursuant to the same statute.

The other statute which the Port contends authorizes its operation of airporter service is the Revised Airports Act, RCW 14.08, which states in part:

(1) Every municipality is hereby authorized . . . to . . . Operate, and regulate such Airports and other air navigation facilities and structures and Other property incidental to their operation, either within or without the territorial limits of such municipality and within or without this state; . . . to . . . maintain airport facilities for the . . . Comfort and accommodation of air travelers . . .

(Italics ours.) RCW 14.08.030(1).

In addition to the general powers in this chapter conferred, and without limitation thereof, a municipality which has established . . . airports . . . is hereby authorized:

(4) . . . to confer the Privileges of concessions of supplying upon its airports goods, commodities, things, services and facilities . . .

(7) To exercise all powers Necessarily incidental to the exercise of the general and special powers herein granted.

(Italics ours.) RCW 14.08.120.

The Port construes this...