State v. Public Service Com'n of Washington

• Decision Date: 05 November 1921
• Docket Number: 16615. [*]
• Citation: 117 Wash. 453,201 P. 765
• Court: Washington Supreme Court
• Parties: STATE ex rel. SILVER LAKE RY. & LUMBER CO. v. PUBLIC SERVICE COMMISSION OF WASHINGTON et al.

201 P. 765

117 Wash. 453

STATE ex rel. SILVER LAKE RY. & LUMBER CO. v. PUBLIC SERVICE COMMISSION OF WASHINGTON et al. No. 16615. ^[*]

Supreme Court of Washington

November 5, 1921

Department 2.

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

At instance of the Tenino Lumber Company, the Public Service Commission of Washington made an order declaring the Silver Lake Railway & Lumber Company a common carrier, and requiring it to act as such. On writ of review, on relation of the Railway & Lumber company, the order was affirmed by the superior court, and relator appeals, the Director of Public Works, the Supervisor of Transportation, and the Supervisor of Public Utilities of Washington being made substitute defendants and respondents. Reversed, and order set aside.

Miller Wilkinson & Miller, of Vancouver, for appellant.

Lindsay L. Thompson and Raymond W. Clifford, both of Olympia, for respondents.

HOVEY, J.

This is an appeal from a judgment of the superior court of Thurston county affirming an order of the Public Service Commission declaring the relator, Silver Lake Railway & Lumber Company a common carrier, and directing it to 'operate its line of railway by transporting freight upon such schedules and upon such days as may be approved by the Commission.'

There is little conflict in the testimony, and the facts are substantially as follows: The relator was incorporated under the laws of this state in the year 1903 as a railway company. Its charter contains the broad powers of a common carrier railway company. The corporation was formed and the railway built for the purpose of conveying a large amount of logs owned by the incorporators from the woods to the Cowlitz river, where the logs are dumped. This terminal point is about one mile from Castle Rock, and the railway as now constructed runs about six or seven miles further to Silver Lake, which is in the midst of the timbered area owned by the incorporators of the railroad. The road was built purely as a logging railroad. It has a maximum grade in excess of 4 per cent., and includes curves as great as 29 degrees. Its equipment consists solely of logging trucks and one 40-ton locomotive for the hauling of the same. It has no stations has never published any tariffs, and has never sought business from others nor held itself out as desiring the same. The country is sparsely settled, and while there is a wagon road following the general line of the railway, it is at times difficult of passage, and the railway company has carried a small amount of merchandise for other persons, for which service it has at times made a charge, and at other times has rendered the service without charge, The charge made has never been under any fixed schedule, and has never been compensatory nor sufficient in amount to have justified the rendition of the service if that were the sole purpose of the railway. The operation of the railway has been entirely dependent upon the requirements of the railway company, and when the market for its logs was inactive, it has not been operated. At one time the railway was not operated for a period of 18 months, and it had not been operated for some weeks at the time the hearing was had.

It was found by the Commission that the relator operated as a common carrier for a number of years after its incorporation, and held itself out to the public as a common carrier. In our opinion this finding is not justified by the testimony in this case, and the character of its operation does not seem to have differed during that period from that of later years.

In the year 1908 the relator brought an action seeking to condemn certain land which it required for its right of way, and in its petition alleged facts showing it to be a common carrier and as such entitled to the right of eminent domain. This action was never prosecuted to judgment but the relator paid to the owners of the land the full price which they demanded for the same, and secured their title in that manner.

The service heretofore rendered by the relator to other persons consisted chiefly of transportation of merchandise needed by a store operated near Silver Lake, the customers of which were principally the employees of the railroad. For a short time it transported shingles for one of its stockholders, and at other times has carried isolated shipments of machinery and in one month transported a large amount of gravel for the county commissioners for the purpose of repairing a highway. It has never transported logs for other persons.

The respondent Tenino Lumber Company has acquired options on some 30,000,000 feet of timber, and desires to have the relator compelled to carry out its logs.

At the outset the question is raised as to the power of the Commission to declare a corporation a common carrier if that fact is disputed, and we are asked to pass upon the effect of such an order.

In most of the cases heretofore decided by this court, the corporations involved have been confessedly public service corporations, and we have held that the orders of the Commission relative to them are presumed to be within the bounds of reasonableness; and unless the contrary clearly appears the same will stand. Great Northern Ry. v Railway Commission, 60 Wash. 218, 110 P. 1075.

In our opinion the question of the character of the corporation is one of fact, and must be determined by the courts upon the evidence presented in the record. In the case of Cushing v. White, 101 Wash. 172, 172 P. 229, L. R. A. 1918F 463, the question of the character of the corporation was determined by the court upon the evidence, and the effect to be given to the finding of the Commission was not discussed. In Associated Pipe Line Co. v. Railroad Commission of...