Puget Sound Pilots Ass'n, Application of

• Decision Date: 17 October 1963
• Docket Number: No. 36388,36388
• Citation: 385 P.2d 711,63 Wn.2d 142
• Court: Washington Supreme Court
• Parties: Applications of the PUGET SOUND PILOTS ASSOCIATION on Behalf of the Members thereof, for an Upward Revision of Traiffs, Tolls and Charges. . Banc

Page 142

63 Wn.2d 142

385 P.2d 711

Applications of the PUGET SOUND PILOTS ASSOCIATION on Behalf

of the Members thereof, for an Upward Revision of

Traiffs, Tolls and Charges.

No. 36388.

Supreme Court of Washington, En. Banc.

Oct. 17, 1963.

Bogle, Bogle & Gates, J. Tyler Hull, Dustin C. McCreary, Seattle, for appellant.

Greive & Law, Seattle, for respondent.

HILL, Judge.

This is an appeal by the Puget Sound Steamship Operators Association and several steamship companies from an order of the Superior Court for King County ¹ dismissing an appeal from an order entered by the Board of Pilotage Commissioners of the state of Washington.

While we disagree with the trial judge on an issue which controls the disposition of the appeal, his memorandum decision contains an excellent background statement which we adopt in part; and we also adopt the conclusion of the trial court on the issue raised as to the constitutionality of the Puget Sound Pilotage Act (RCW 88.16). The portion of the memorandum decision which we adopt is as follows:

'This is an appeal from an order of the State Board of Pilotage Commissioners handed down December 19, 1960, authorizing various increases and changes in the rates charged for pilotage on Puget Sound and adjacent inland waters. The Puget Sound Steamship Operators Association (on behalf of various vessel owners and operators) feeling aggrieved by this order appealed to the Superior Court pursuant to the authorization of RCW 34.04.130.

'The State Board of Pilotage Commissioners was created in 1935 when the Legislature adopted the Puget Sound Pilotage Act. * * * 'It is first argued that the * * * Act violates the State Constitution. This position is not well taken. ² * * *

'The legislation with which we are here concerned meets this test. RCW 88.16 contains a declared legislative purpose and sufficient guide lines. The statute even sets up some temporary rates and standards which were intended to apply until the pilotage board could organize and tade official action.

'It is significant, too, that the law has been in effect for some twenty-six years and that both the piltos and vessel operators have acted under it without challenging its constitutionality. In the 1939 case (State ex rel. Sater v. State Board of Pilotage Commissioners, 198 Wash. 695, 90 P.2d 238) the legality of the act was somewhat indirectly involved. In that proceeding, the parties apparently conceded the constitutionality of the legisaltion.

'Petitioners' second point is that the Board of Pilotage Commissioners was improperly constituted in that the Director of the Department of Labor and Industries authorized the Supervisor of Industrial Relations to sit and act in his place.

'RCW 88.16.010 is clear and explicit as to who shall be members of the board. This section of the law reads as follows:

'The board of pilotage commissioners of the state of Washington is hereby created and shall consist of the director of labor and industries of the state of Washington, ex officio, who shall be chairman of the board, and of four members appointed by the governor. Each of said appointed members shall be appointed for a term of four years * * *.

Two of said appointed commissioners shall be pilots licensed under this chapter * * *. Two of said appointive commissioners shall be actively engaged in the ownership, operation or management of deep sea cargo and/or passenger carrying vessels * * *.'

'There seems to be nothing in either the Puget Sound Pilotage Act or the Administrative Procedure Act that authorizes a delegation of authority. If the Director of the Department of Labor and Industries can authorize the Supervisor of Industrial Relations to sit and act for him, presumably he could authorize any other third person so to do. In this particular instance it is apparent that the Supervisor of Industrial Relations served as chairman of the board with ability and that he was scrupulously fair and impartial in his work as presiding officer. It is only fair to say that the Supervisor of Industrial Relations handled a difficult hearing in a commendable manner. In fact, the petitioners have made no suggestion of complaint or criticism, but stand solely on the technicality that the board was improperly constituted.

'The importance of the identity of the chairman of the board cannot be over emphasized. The agency consists of five members, two of whom are pilots and two of whom are, or represent, vessel operators. It is apparent that these members cannot be expected to be impartial or disinterested. As a practical matter they no doubt sit on the board more as advocates than as judges. Accordingly, the fifth member of the board has great authority. In the present case, for instance, it is apparent that the pilot members and the operator members were in disagreement and that it was the chairman's vote that resulted in an increase of compensation.

'The rule is well stated in 42 Am.Jur., Public Administrative Law § 73, as follows:

"It is a general principle of law, expressed in the maxim 'delegatus non potest delegare,' that a delegated power may not be further delegated by the person to whom such power is delegated. Apart from statute, whether administrative officers in whom certain powers are vested or upon whom certain duties are imposed may deputize others to exercise such powers or perform such duties usually depends upon whether the particular act or duty sought to be delegated is ministerial, on the one hand, or, on the order, discretionary or quasi-judicial. Merely ministerial functions may be delegated to assistants whose employment is authorized, but there is no authority to delegate acts discretionary or quasi-judicial in nature. * * *'

'There can be no doubt that the function of the board of pilotage commissioners in the instant case is of a judicial nature and not at all ministerial. A party appearing before the board in a proceeding of this kind is entitled to the consideration and judgment of the Director of the Department of Labor and Industries rather than that of some third person arbitrarily selected and designated by the director.'

The last quoted paragraph of the trial judge's memorandum correctly states the law, and we are in complete accord. See Roehl v. Public Utility Dist. No. 1 (1953), 43 Wash.2d 214, 261 P.2d 92. ³

However, the trial court failed to apply the law, as stated, and concluded that the petitioners were estopped to complain of the substitution of the Supervisor of Industrial Relations for the Director of the Department of Labor and Industries. With this conclusion we do not agree.

If an estoppel were possible, this would be a proper situation in which to invoke it, for it is as the trial court said:

'* * * unfair to allow a litigant to impliedly accept or agree to the composition of an administrative board, then go through a lengthy hearing before such board [801 pages of testimony] and finally, upon receiving an adverse decision, raise the question of board membership for the first time. * * *' However, there can be no estoppel to assert a lack of jurisdiction over the subject matter of the controversy.

The ability and fairness of the substitute, designated by the Director of the Department of Labor and Industries, are not disputed; the difficulty is that there could be no substitute. Whoever was designated by the director to act for him was in the same position as would be a justice of the peace in trying to grant a divorce, quiet title to real property, or sentence a defendant to be hung--there would be a complete absence of power. there is absolutely nothing in the Pilotage Act (RCW 88.16) to indicate that the Director of Labor and Industries could delegate to anyone else his authority as a member and Chairman of the Board of Pilotage Commissioners.

The Board of Pilotage Commissioners is subject to the Administrative Procedure Act (RCW 34.04), and has filed...