State ex rel. R.R. Com'n of Washington v. Oregon R. & Nav. Co.

• Decision Date: 09 April 1912
• Citation: 68 Wash. 160,123 P. 3
• Court: Washington Supreme Court
• Parties: STATE ex rel. RAILROAD COMMISSION OF WASHINGTON et al. v. OREGON R. & NAVIGATION CO.

123 P. 3

68 Wash. 160

STATE ex rel. RAILROAD COMMISSION OF WASHINGTON et al. v. OREGON R. & NAVIGATION CO.

Supreme Court of Washington

April 9, 1912

Department 2. Appeal from Superior Court, Whitman County; J. N Pickrell, Judge.

Action by the State of Washington, on the relation of the Railroad Commission of Washington, and others, against the Oregon Railroad & Navigation Company. Judgment for relators, and defendant appeals. Affirmed.

W. W Cotton, R. L. McCroskey, and Arthur C. Spencer, all of Portland, Or., for appellant.

W. V Tanner, Atty. Gen., and Stephen V. Carey, Asst. Atty. Gen., for respondents.

ELLIS J.

On May 3, 1909, the Railroad Commission of the state of Washington caused to be filed before itself a complaint against the Oregon Railroad & Navigation Company, alleging, among other things, that the depot facilities of the defendant at its various stations in this state were inadequate. This complaint and a citation directing the defendant to appear before the commission on June 9, 1909, in the city of Spokane, and giving notice that adjourned hearings would be had at the various stations on defendant's line to take evidence concerning the complaint, were regularly served upon the defendant on May 7, 1909. The defendant filed an answer to the complaint of the Railroad Commission on May 17, 1909, denying the principal allegations of the complaint, and alleging affirmatively that the defendant was maintaining adequate and sufficient station facilities along its lines of railroad. Pursuant to the citation, the commission convened in Spokane on June 9, 1909, and adjourned to meet at the station of Hay upon the defendant's railroad line in Whitman county on the following day, where a hearing was had at which the commission took evidence, and inquired into the sufficiency of the station facilities at that point. The defendant appeared by counsel and offered testimony. Its assistant general manager testified on its behalf. No objection was made to the jurisdiction of the commission under the complaint to make an investigation of the station facilities at Hay, nor was any question raised as to the sufficiency of the complaint, either in form or substance, to invoke that jurisdiction. Both parties then treated the complaint and answer as sufficiently putting in issue the sufficiency of the station facilities at Hay, and proceeded with the hearing on that issue. At the close of the hearing, the chairman of the commission made an oral announcement as follows: 'An order will be entered providing that a suitable station building for the accommodation of the freight and passengers should be erected at or immediately in the vicinity of Hay by the company at a point to be selected by the company and the question as to whether the caretaker shall be provided or an agent installed will depend upon the showing of the earnings to be furnished the commission by Mr. Coman.' On July 27, 1909, the commission made and entered findings in the proceedings conducted under the complaint and answer, which findings, so far as they related to defendant's facilities at Hay, were as follows: 'That Hay is a station on the defendant company's line having 3 general stores, blacksmith shop, harness shop, lumber yard, and 2 warehouses; that a large amount of shipments occurs annually from Hay consisting of approximately 200,000 bushels of grain annually; that the receipts from freight received approximate $1,500 annually; that the facilities for handling freight at Hay consist of a freight shed approximately 12 by 14 feet in size so constructed that there is no approach to the same by teams; that the station is frequently crowded, and the freight crew do not deposit freight in the building, but the same is scattered along the right of way; that there is no shelter provided for persons taking the train at Hay.' On July 31, 1909, the commission made and entered a formal order in writing, which was as follows: 'It is by the commission ordered that a suitable station building be erected at Hay for the accommodation of passengers and storage of freight, and that a caretaker be provided by the defendant company and kept at Hay, whose duty it shall be to open the station building half an hour prior to the scheduled arrival of trains, and keep the same open for half an hour after the departure of such trains, during which time he shall deliver to the consignees any freight called for, belonging to said consignees; that he shall keep such station properly lighted and ventilated during such time; that such station building be erected in the vicinity of the present stockyards; and that the same be erected and the caretaker be installed within 45 days from and after the date of the service of this order upon the defendant company.' These findings and this order were served upon the defendant on August 10, 1909. It is admitted that the defendant did not within 20 days after the service of the order, nor at all, institute in any court in the state of Washington any proceedings to review the order or to inquire into its reasonableness or lawfulness. By a compliance with the order the depot would have been completed not later than September 24, 1909. It was commenced on December 19, 1909, and was not completed until January 11, 1910. This action was commenced in the superior court in Whitman county on December 31, 1909, by the state upon relation of the Railroad Commission to recover a penalty for the failure of the defendant to comply with the order. From a judgment assessing a penalty the defendant has appealed.

At the trial the fact that the depot as finally built was not located upon the exact site contemplated by the order was expressly abandoned as a ground of recovery. The only ground relied upon for recovery in the court below and relied upon here for an affirmance of the judgment was, and is, the fact that the defendant did not comply with the order within the time therein fixed. Neither in its answer in this action nor by any offer of evidence did the defendant set up or seek to prove any excuse for not constructing the station building within the time required by the order.

1. The appellant's first contention is that the complaint filed by the Railroad Commission with itself on May 3, 1909, upon which the inquiry was made resulting in the order for the violation of which a penalty is sought to be recovered in its action, was not a sufficient complaint to amount to a compliance with the Railroad Commission law, particularly, with the proviso found at the end of the first paragraph of section 6 (Rem. & Bal. Code, § 8632), which is as follows: 'Provided, all grievances to be inquired into whether by complaint made to the commission or by inquiry upon its own motion, shall be set out in the complaint, which shall be served upon the railroad, express, telephone or telegraph company, together with notice of the time and place of hearing.' By the third section of the act (Rem. & Bal. Code, § 8629) the commission is '* * * vested with power and authority, upon complaint made as hereinafter provided or by inquiry upon its own motion, after a full hearing to make any findings declaring an existing rate, * * * or the sufficiency of trackage, industrial and commercial spurs, railroad connections, sidings, equipment, facilities, train service, accommodation in the shape of waiting rooms for passengers and rooms for freight and baggage, or any rule or regulation concerning the quantity or character or baggage to be carried for each passenger, or the sufficiency and efficiency of any facilities or equipment used by any of such companies, to be unreasonable, insufficient, inefficient or unjustly discriminatory, and declare and order what shall be a just and reasonable rate, * * * to order that additional trackage, industrial and commercial spurs, sidings, equipment and facilities, be constructed and furnished. * * *' It is manifest from the foregoing excerpts from the statute that it confers full jurisdiction upon the commission to investigate upon its own motion the subject-matter of the hearing which was held at Hay on June 10, 1909, viz., the sufficiency of 'waiting rooms for passengers and rooms for freight and baggage,' and, after full hearing, to make findings and an order that 'additional facilities be constructed and furnished.' The jurisdiction over the subject-matter was complete, and the order was within that jurisdiction.

But it is argued that the complaint so filed was insufficient to invoke jurisdiction, in that it did not specify what particular grievance or grievances would be investigated, and in that it was a 'blanket' complaint covering all of appellant's stations, and did not specifically state that the station facilities at Hay were inadequate. In support of this contention the appellant cites State ex rel. Great Northern Railway Company v. Railroad Commission, 47 Wash. 627, 92 P. 457, and State ex rel. Northern Pacific Railway Company v. Railroad Commission, 52 Wash. 440 100 P. 987. These were rate cases. In the first the complaint referred only to certain named distance tariffs, while the order related to certain other commodity rates. It was held that the statute did not 'expressly empower the commission, on complaint that particular rates are unreasonable or unjustly discriminatory, to establish or correct rates elsewhere against which no complaint is made.' The court further said: 'But an examination of the complaint will show that no complaint was made of these rates, but, on the contrary, it is specially alleged that they were fair, just, and reasonable.' In the second case cited the complaint was specifically directed to rates on grain and cereals alone. It was held that, there being nothing in the complaint of the commission...