State ex rel. Country Club of Seattle v. Department of Public Service

• Decision Date: 08 February 1939
• Docket Number: 27086.
• Parties: STATE ex rel. COUNTRY CLUB OF SEATTLE v. DEPARTMENT OF PUBLIC SERVICE et al.
• Court: Washington Supreme Court

86 P.2d 1104

198 Wash. 37

STATE ex rel. COUNTRY CLUB OF SEATTLE v. DEPARTMENT OF PUBLIC SERVICE et al.

No. 27086.

Supreme Court of Washington

February 8, 1939

Department 2.

Proceeding by the State of Washington, on the relation of the Country Club of Seattle, against the Department of Public Service of the State of Washington and another, consolidated with similar proceedings by other persons, to review an order of the Department. The order was affirmed, and an appeal was taken on behalf of all the parties, but briefs were filed only by the Country Club of Seattle and its members.

Judgment affirmed.

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

Lewis, Black & Ghormley and Evans, McLaren &amp Littell, all of Seattle, for appellant.

G. W Hamilton, Don Cary Smith, Frederick J. Lordan, Will M. Derig and W. E. McCroskey, all of Olympia, for respondents.

ROBINSON Justice.

This cause involves the validity of an order of the department of public service regulating water transportation between Bainbridge Island and Seattle. That intricate and complex problem has, in some form or other, been Before the regulatory body almost continuously for more than six years, and phases of it have been Before this court on several previous occasions. Broadly speaking, the order complained of substitutes, for the former system consisting of a vehicular ferry running to and from Port Blakely and supplemented by coastal boats, a vehicular ferry running out of Eagle Harbor, supplemented by a regular bus service connecting the ferry terminus with all parts of the island, the bus service to be continuously maintained by the ferry company as an integral part of its transportation system.

Bainbridge Island lies about eight miles west of Seattle, and is about ten miles in length by three in average width. It has a permanent population of about three thousand, and at least double that number during the summer season. The appellant country club owns an extensive tract of land, the southeast corner of the island, acquired about 1890. About fifteen families have residences on the tract, and six or seven of them reside there the year round. The tract is highly developed, the improvements being valued in excess of a quarter of a million dollars. These consist of a number of very substantial residences, a self-contained water system, a golf course, and the other recreational facilities usually appurtenant to a country club. The country club tract is bounded on the north by Port Blakely, a narrow indentation which extends into the island for something more than a mile. From this point, there has been some sort of water transportation to and from Seattle since 1865. The country club has maintained its own dock on the south shore of the bay for upwards of forty-five years.

A vehicular ferry began to run from Seattle to Port Blakely, a little settlement on the north shore of the bay, about fifteen years ago, and such service was practically continuous until the questioned order became effective. This ferry stopped at the country club dock to take on or discharge foot passengers. The fact that Port Blakely bay was so long the center of the vehicular ferry service had its natural effect upon the planning and maintenance of the island roads. The roads leading from Port Blakely are wider and safer than those leading from Eagle Harbor, and have fewer sharp grades. The country club dock was also used by the residents of the south shore of the island, particularly by the residents of South Beach. Of these, there are about thirty families during the summer, and, perhaps, a fourth of them live on the island the year round. Having no road connections, they walked to the country club dock, a distance of about a mile.

About two miles north of Port Blakely bay, another indentation extends into the island, called Eagle Harbor. Here, on the north side and near the entrance is Wing Point; Creosote is on the south shore; farther in is Hawley on the north shore; and Eagledale on the south. The old settlement of Winslow is still farther to the west on the north shore.

About two miles north, and about the center of the eastern side of the island, is Rolling Bay, another indentation, with a considerable settlement at Manitou Beach and other neighboring points. Port Blakely, Eagle Harbor, and Manitou Beach are all suitable for the accommodation of ferry service and are about equi-distant from Seattle, the distance being 8.1 miles, 8.4 miles, and 8.6 miles, respectively.

Port Madison is situated on a bay running in from the north shore of the island. At the extreme north end is Agate Beach. On the western side are Crystal Springs, Fletcher Bay, Venice, Manzanita, and Seabold. These points on the north and west shores formerly enjoyed a considerable service by boat. With the development of the Port Blakely ferry and of stage service on the island, a great deal of time was saved by crossing the island by stage, or private automobile, and taking the ferry at Port Blakely or a boat at Eagle Harbor or Manitou Beach.

The center of population is a little south of the center of the island, being something like a mile north and a little west of Eagle Harbor.

Prior to the passage of chapter 248, p. 382 Laws 1927 (the certificate of necessity act), the Kitsap County Transportation Company (hereinafter called the Kitsap company) had been operating vessels on the Bainbridge Island and contiguous mainland routes. It was granted six certificates of necessity, which were, in 1928, consolidated in steamboat certificate No. 1. This certificate did not provide for ferry services to Manitou Beach. In September, 1931, the Puget Sound Navigation Company applied to the department of public works, now the department of public service, for a certificate authorizing it to furnish a ferry service between Seattle and Manitou Beach. After a hearing, the application was granted, and the navigation company built a ferry dock at Manitou.

The matter finally came to this court on a writ of certiorari, and that certificate was quashed. Kitsap County Transportation Co. v. Department of Public Works, 170 Wash. 396, 16 P.2d 828. It is interesting to note that the court, in this opinion, suggested that the Kitsap company might, perhaps, be required to establish a ferry to Manitou Beach, and added [page 830]: 'It may also be that the Kitsap Company should be required to extend or change its vehicle ferry service to and from the island to some other route or routes of higher public necessity than the Seattle-Manitou Beach route, or even than the Seattle-Port Blakely route.'

In January, 1933, the Manitou Beach-Agate Pass Ferry Association, an organization of residents of the north part of the island, petitioned the department to order the Kitsap company to establish ferry service between Seattle and Manitou Beach, and across Agate Pass. While its petition was pending in the department, the association resorted to self-help, by chartering a ferry boat to make ten round trips per day between Seattle and Manitou Beach. It had made three round trips when the service was stopped by a restraining order, on complaint of the Kitsap company that it constituted an infringement upon the rights granted in its certificate. This court upheld that contention in Kitsap County Transportation Co. v. Manitou etc. Assn., 176 Wash. 486, 30 P.2d 233, and, in doing so, said, of the island problem [page 236]: 'The basic difficulty, as we read the record, is that the revenues of traffic between Seattle and Bainbridge Island are not sufficient to support the kind of transportation desired by appellants. It appears from the record that respondent has at all times endeavored to keep its service abreast of the demands of traffic, and we think has succeeded in doing so. As recently as 1928, respondent put a new ferry in service, at a cost of $150,000. To establish the service desired by appellants would require an initial outlay of $200,000. This the revenues from the traffic would not warrant. To allow a competitor to enter the field would be to encourage ruinous competition which would be not only destructive of respondent's rights under its certificate of convenience and necessity, but inimical to the best interests of the traveling public at large.'

After a long hearing, the petition of the association that the department required the Kitsap company to establish ferry service to Manitou Beach was denied, but some additional service was ordered on August 5, 1933, in Department Cause No. 6581. That order was obeyed until November 7, 1935, when a strike shut down most of the service until December 13, upon which date the company reestablished a part of the service only.

The instant proceedings were instituted in Cause No. 6906, by an order issued in January, 1936, requiring the Kitsap company to show cause why it was not maintaining the service ordered in Cause No. 6581. In the first hearing, which was held in February and occupied thirteen days, one hundred and thirty witnesses were sworn and one hundred and fifteen exhibits were received in evidence. At this hearing, as in the previous hearing in Cause No. 6581, a proposal to remove the ferry terminal from Port Blakely to Eagle Harbor was rejected by the department, but jurisdiction of the matter was retained in the order issued on May 16, 1936, for a period of one year, for the purpose of making such modifications or revisions of the order as the department, after investigation, might deem necessary and proper.

Another hearing was held in the matter during September and October, resulting in an order from which we quote, as follows:

'The problem with which the Department is faced is a most difficult one. It does not seem probable that within the

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