State v. Public Service Com'n of Washington

• Decision Date: 13 January 1917
• Docket Number: 13746.
• Citation: 94 Wash. 274,162 P. 523
• Court: Washington Supreme Court
• Parties: STATE ex rel. CHICAGO, M. & ST. P. RY. CO. v. PUBLIC SERVICE COMMISSION OF WASHINGTON et al.

162 P. 523

94 Wash. 274

STATE ex rel. CHICAGO, M. & ST. P. RY. CO. v. PUBLIC SERVICE COMMISSION OF WASHINGTON et al.

No. 13746.

Supreme Court of Washington

January 13, 1917

Department 1. Appeal from Superior Court, Thurston County; D. F. Wright Judge.

Proceedings on relation of Chicago, Milwaukee & St. Paul Railway Company to review an order of the Public Service Commission of Washington and others. Judgment for respondents, and relator appeals. Reversed and remanded.

F. M. Dudley and F. M. Barkwill, both of Seattle, for appellant.

W. V. Tanner, Atty. Gen., and Scott Z. Henderson, Asst. Atty. Gen. (C. E. Arney, Jr., of Olympia, of counsel), for respondents.

ELLIS C.J.

This is an appeal from a judgment entered in the superior court of Thurston county in a proceeding to review an order of the Public Service Commission, ordering that appellant railway company pay to respondent warehouse company certain sums of money with interest for the failure to furnish cars in accordance with the reciprocal demurrage rules promulgated by the Commission. These rules were issued and made effective as of November 5, 1912, and are numbered from 1 to 12, inclusive. Prior to the transaction here involved, rules 3 and 12 were amended. The questions presented by this appeal relate to the validity of these rules. Rules 3 and 12, as amended, are as follows:

'Rule 3. When a shipper makes written application to a railroad company for a car or cars, not exceeding ten cars in number during any one day, to be loaded with any kind of freight embraced in the tariffs of said company, stating in such application the character and approximate amount of the freight and its destination, the said railroad company shall furnish the same within six days from seven a. m. of the day following the receipt of said application; and when a shipper making application specifies a future date on which he desires to make a shipment, giving not less than six days' notice thereof, computing from seven a. m. the day following the receipt of said application, the railroad company shall furnish said cars on the date specified in the application: Provided, in those cases where less than daily service is afforded, the six days' time above specified shall be extended to ten days; provided further, that at the terminal points of Seattle, Tacoma and Spokane the six days' time above specified shall be reduced to three days; and, provided further, that carriers shall not be required to furnish equipment beyond the ability of the shipper to load, and provided further, that this rule shall not be construed as requiring carriers to furnish cars for the transportion of freight destined to points upon foreign roads, such question being preserved for determination under section 24, chapter 117, Laws of 1911 of the state of Washington.

'In case the shipper in his written application requests notification of the date of placement of the car or cars for loading, it shall be incumbent upon the railroad company to notify such sipper not less than twenty-four hours prior to the day and date upon which the car or cars will be placed stating the day and date of placement. When the application does not contain such request, it shall not be obligatory upon the company to give such notice.

'For failure to furnish cars or to give notice within the time prescribed in this rule, the railroad company shall forfeit and pay to the shipper applying for car or cars, the sum of one dollar per car per day, or fraction thereof.'

'Rule 12. When any dispute or controversy arises between shipper, consignee and carriers with reference to the application or operation of any of these rules, or the collection or payment of demurrage charges thereunder, complaint must be made to the Public Service Commission, and its decision thereof shall have the same effect and be subject to review in the same manner as other decisions and orders of the commission.'

In January, 1913, the warehouse company made application to the railway company pursuant to rule 3 for cars for loading grain at Castleton, Wash., to be shipped to points on Puget Sound. The cars were not furnished within the time prescribed by the rule. In July, 1913, the warehouse company filed its complaint with the Public Service Commission pursuant to rule 12, alleging the failure of the railway company to furnish the cars, and praying that an order be made, requiring it to pay to complainant reciprocal demurrage under rule 3 in the sum of $98. In September, 1913, in response to citation the railway company served and filed a demurrer and an answer to the complaint. The demurrer challenged the sufficiency of the complaint and the jurisdiction of the Commission on the ground that the Commission is without authority, under the Public Service Commission law, to fix any penalty to be paid to shippers applying for cars in case of failure on the part of the railway company to furnish such cars as provided by rule 3 of the reciprocal demurrage rules. We find it unnecessary further to notice the answer, since every question material to the inquiry, as we view it, is presented by the demurrer and appellant's motion to dismiss. On September 18, 1913, testimony was taken before the Commission at Rosalia, Wash., a copy of which testimony is attached to the transcript before us. At the beginning of the hearing before the Commission the railway company moved to dismiss the complaint upon the ground that it violated section 3, art. 1, of the state Constitution, section 1 of the Fourteenth Amendment to the federal Constitution, section 8, art. 1, of the federal Constitution, and the act of Congress regulating commerce as amended June 29, 1906, April 13, 1908, and June 18, 1910 (U. S. Comp. St. 1913, § 8563 et seq.). On June 1, 1915, the Public Service Commission filed its findings of fact, and thereon entered an order as follows:

'It is ordered that defendant pay to complainant, H. Schlaefer Warehouse Company, the sum of $67.00 with interest on $14.00 from January 31, 1913; on $12.00 from February 5, 1913; on $41.00 from February 7, 1913, until paid.'

The railway company petitioned for a writ of review, alleging, among other grounds, that the rules in question were invalid and that the Commission had no jurisdiction to enter the order. The writ was issued, return thereon made, the cause was argued before the superior court of Thurston county, and judgment was entered, affirming the order of the Commission on June 30, 1916. From that judgment this appeal was taken.

1. Appellant railway company first contends that the Commission had no authority to promulgate reciprocal demurrage rule 3, prescribing penalties for failure to furnish cars. This contention is based upon the claim that the sections of the statute conferring the power to make the rules are void as attempting a delagation of legislative power in contravention of section 1, art. 2, of the state Constitution, vesting the legislative power in the Senate and House of Representatives. Referring to the Public Service Commission law of this state, chapter 117, Laws of 1911, we find provisions as follows:

'Sec. 10. Every common carrier shall under reasonable rules and regulations promptly and expeditiously receive, transport and deliver all persons or property offered to or received by it for transportation. * * *

'Sec. 11. Every railroad company shall upon reasonable notice, furnish to all persons and corporations who may apply therefor and offer property for transportation sufficient and suitable cars for the transportation of such property in carload lots. In case at any particular time a railroad company has not sufficient cars to meet all the requirements for transportation of property in carload lots, all cars available for such purpose shall be distributed among the several applicants therefor, without unjust discrimination between shippers, localities or competitive or non-competitive points.'

'Sec. 59. The Commission shall have, and it is hereby given, power to provide by proper rules and regulations the time within which all railroads shall furnish, after demand therefor, all cars, equipment and facilities for the handling of freight in carload and less than carload lots, * * * the distance that freight shall be transported each day after receipt, the time within which consignors or persons ordering cars shall load the same, and the time within which consignees and persons to whom freight may be consigned shall unload and discharge the same and receive freight from the freight rooms, and to provide the penalties to be paid to consignors and consignees for delays on the part of railroads to conform to such rules, and prescribe the penalty to be paid by consignors and consignees to railroads for failure to observe such rules.'

'Sec. 85. The Commission is hereby authorized and empowered to adopt, * * * rules governing demurrage and reciprocal demurrage, and to provide reasonable penalties to expedite the prompt movement of freight and release of cars. * * * Any public service company affected thereby, and deeming such rules and regulations, or any of them, improper, unjust, unreasonable, or contrary to law, may within twenty days from the date of service of such order upon it file objections thereto with the Commission, specifying the particular grounds of such objections. The Commission shall, upon receipt of such objections, fix a time and place for hearing the same, and after a full hearing may make such changes or modifications thereto, if any, as the evidence may justify. * * *'

It is admitted that sections 59 and 85, if themselves free from constitutional objection, sufficiently authorize the Commission to promulgate rule 3 here attacked so for as the objection now under discussion is concerned.

On the...