State v. Department of Public Works

• Decision Date: 03 April 1923
• Docket Number: 17341.
• Citation: 124 Wash. 234,214 P. 164
• Court: Washington Supreme Court
• Parties: STATE ex rel. B. & M. AUTO FREIGHT v. DEPARTMENT OF PUBLIC WORKS et al.

214 P. 164

124 Wash. 234

STATE ex rel. B. & M. AUTO FREIGHT v. DEPARTMENT OF PUBLIC WORKS et al.

No. 17341.

Supreme Court of Washington

April 3, 1923

Department 2.

Appeal from Superior Court, Thurston County; J. M. Wilson, Judge.

Application by the B. & M. Auto Freight and the Shelton-Olympia Transfer Company, respectively, to the Department of Public Works for extension of freight service from Olympia to Shelton. There was an order granting a certificate of public convenience and necessity to the last-named applicant, and from an adverse judgment of the superior court on review, the first-named applicant appeals. Affirmed.

Vance & Christensen, of Olympia, for appellant.

Lindsay L. Thompson and Raymond W. Clifford, both of Olympia (Chas R. Lewis, of Shelton, of counsel), for respondents.

MAIN C.J.

This is an appeal from the judgment of the superior court affirming an order of the department of public works granting a certificate of public convenience and necessity to one of two rival applicants.

On the 29th day of October, 1921, the appellant, the B. & M. Auto Freight, made application to the department of public works for an extension of its freight service from Olympia to Shelton. On this date and for some time prior thereto that company was, and had been, operating under a certificate by which it was authorized to carry freight between Tacoma and Olympia. On November 1, 1921, W. A. Johnson and Edwin Wivell under the firm name of Shelton-Olympia Transfer Company, made application for a certificate to operate freight carriers between Olympia and Shelton. The Shelton Transportation Company, which operated a boat between Shelton and Tacoma, protested the application of the B. & M Company, but did not protest against a certificate being granted to the Shelton-Olympia Transfer Company. After a hearing, the department of public works denied the application of the B. & M. Company and granted the certificate to the Shelton-Olympia Transfer Company. This order was by the B. & M. Company taken before the superior court for review, and from an adverse judgment in that court the B. & M. Company has prosecuted this appeal.

The appellant assigns a number of errors, challenging the correctness of the findings of fact made by the department of public works. These will not be reviewed in detail. It is sufficient to say that, after a careful consideration of all the evidence, we are of the opinion that the findings of the department should be sustained. The findings of the department will not be disturbed unless they show evidence of arbitrariness and disregard of the material rights of the parties to the controversy. Puget Sound Electric Railway v. Railroad Commission, 65 Wash. 75, 117 P. 739, Ann Cas. 1913B, 763; State ex rel. Great Northern Railway Co. v. Public Service Commission, 76 Wash. 625, 137 P. 132. Under the rule of those cases there is abundant evidence to support the findings of the department of public works.

Aside from its objection to the findings, the appellant makes two principal contentions: First, that the Shelton Transportation Company had no right to be heard by the department of public works in protest against the application of the B. & M. Company; and, second, that the application of the B. & M. Company was entitled to preference over that of the Olympia-Shelton Transfer Company.

Taking up the question of the right of the Shelton Transportation Company to be heard, it appears from the evidence and the findings that that company was a public carrier by water of freight and passengers between the cities of Shelton and Tacoma and intermediate points, and that many of the intermediate points served had no other means of transportation than that provided by that company. About 90 farmers living in Mason county, some distance from...