State ex rel. Northeast Transp. Co. v. Abel, 28340.

• Decision Date: 05 September 1941
• Docket Number: 28340.
• Citation: 116 P.2d 522,10 Wn.2d 349
• Parties: STATE ex rel. NORTHEAST TRANSP. CO. v. ABEL et al.
• Court: Washington Supreme Court

116 P.2d 522

10 Wn.2d 349

STATE ex rel. NORTHEAST TRANSP. CO. v. ABEL et al.

No. 28340.

Supreme Court of Washington

September 5, 1941

Department 2.

Proceedings by the State of Washington on the relation of Northeast Transportation Company, against Don G. Abel, director, Ralph J. Benjamin, Supervisor of Transportation; A. M. Garrison Supervisor of Public Utilities, constituting the Department of Public Service of the State of Washington, Maple Leaf Improvement Club, Riviera Beach Community Club, Lake City Community Club, and Signal Oil Company, challenging the right of the Department of Public Service to revoke and cancel a certificate of public convenience and necessity. From judgment for defendants, plaintiff appeals.

Reversed.

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

Rummens & Griffin and Frank E. Hammond, all of Seattle, for appellant.

Smith Troy, Don Cary Smith, and Joseph Starin, all of Olympia, for Department of Public Service.

Robert W. Beach, of Seattle, for Maple Leaf Imp. Club and another.

SIMPSON, Justice.

This case involves the right of the department of public service to revoke and cancel a certificate of public convenience and necessity issued to and held by the Northeast Transportation Company.

April 8, 1940, the Maple Leaf Improvement Club and others filed a complaint with the department of public service, alleging inter alia, that the Northeast Transportation Company: '* * * has without due notice increased fares without apparent reason for such increase; that the equipment operated by the Northeast Transportation Co. does not conform to reasonable standards of safety; and that, because of poor mechanical condition of the busses the schedules maintained by the company are highly irregular. * * *'

A hearing was had Before an examiner of the department. Much evidence was received relative to the manner in which the company conducted its business and the condition of its equipment. Thereafter, May 21, 1940, an order was entered dismissing the complaint regarding 'increased fares' and 'irregular schedules,' and providing:

'That the Northeast Transportation Company be, and it is hereby, ordered to place the two gray 29-passenger Ford buses, license numbers 576 and 577, respectively, operated by it in proper operating condition as to ventilation, seats, and fixtures, in accordance with the above findings, or cease use of the same, substituting such other satisfactory equipment as may be necessary, within thirty (30) days of date hereof.

'2. The said company is hereby ordered and required to lower the floor of the 'yellow' International bus, license number 809, operated in its service so that it will have a lowered floor within thirty (30) days from date hereof, in accordance with our findings.

'3. The said company is hereby required to submit all its equipment to inspection by the Department as to fitness for operation thirty (30) days from date hereof at a time and in a manner convenient to both the company and Department.

'4. The said company is hereby ordered to refuse to carry more standing passengers in said 'yellow' International and Indiana buses than can be accommodated on the level floor of said buses, and to care for any excess passengers by use of other equipment.

'5. The said company is hereby ordered and required to install seat hand holds or ceiling straps foe the benefit of standing patrons in all buses where patrons are allowed to stand and where neither of said applicances are now installed.

'6. The said company is hereby ordered to comply immediately with Rules 38 and 39 of the Department's rules regulating bus companies, requiring proper identification of its equipment and drivers.'

July 6, 1940, the department issued an order commanding the company to appear and show cause why its certificate of public convenience and necessity should not be suspended or cancelled for failure to comply with the order of May 21, 1940. After a hearing Before the department, an order was entered July 30, 1940, cancelling the transportation company's certificate.

Thereafter the company secured a writ of review from the superior court of Thurston county. The trial court affirmed the order of the department and the transportation company appealed to this court.

The assignments of error are in holding that the show cause order conferred jurisdiction upon the department to revoke the certificate of public convenience and necessity, and in entering judgment affirming the department's order.

We deem it unnecessary to review the evidence adduced at the first hearing Before the examiner. It is sufficient to say that we have read the record which is full of hearsay, speculation and conjecture, but do not feel justified in holding that the department acted unreasonably or unlawfully in ordering the appellant to make changes and repairs to its equipment.

Appellant first contends that the original complaint of the department filed April 8, 1940, was insufficient to invoke jurisdiction because it did not contain an allegation regarding the revocation of the certificate. It argues that Rem.Rev.Stat. § 10422 [P.C. § 5607], requires that all grievances to be inquired into must be set forth in the complaint; that the department is without jurisdiction to determine matters not included therein; that the original complaint herein contained no allegation relating to the revocation of the certificate; and therefore, the department was without jurisdiction to enter its order of revocation.

Upon compliance with certain requirements, the department is empowered to revoke a certificate of convenience and necessity. Rem.Rev.Stat. (Sup.) Vol. 7A, § 6389 [P.C. § 234-5]. At the time the original complaint was filed, revocation was not at issue. Thus there was no necessity for placing such an allegation in the complaint. Thereafter upon the alleged failure of appellant to execute the order of May 21, 1940, it was served with an 'Order to Show Cause and Notice of Hearing.' This not only included a recital of past circumstances of the case, but stated that appellant was directed to appear and show cause why its certificate should not be cancelled for failure to comply with the department's order.

The fundamental point is not the name given to the pleading, but whether appellant was apprised of the charge against it. We hold that the show cause order was sufficiently comprehensive to acquaint appellant with the nature of the proceedings, and therefore, its contention is groundless.

We now turn to the main question in the case: Was the department justified in revoking appellant's certificate of public convenience and necessity because it failed to comply with its order of May 21, 1940?

The statute which gives the department the power to revoke a license...