Taylor-Edwards Warehouse & Transfer Co., Inc. v. Department of Public Service, 29525.

• Decision Date: 12 March 1945
• Docket Number: 29525.
• Citation: 22 Wn.2d 565,157 P.2d 309
• Court: Washington Supreme Court
• Parties: TAYLOR-EDWARDS WAREHOUSE & TRANSFER CO., Inc., v. DEPARTMENT OF PUBLIC SERVICE et al.

157 P.2d 309

22 Wn.2d 565

TAYLOR-EDWARDS WAREHOUSE & TRANSFER CO., Inc., v. DEPARTMENT OF PUBLIC SERVICE et al.

No. 29525.

Supreme Court of Washington

March 12, 1945

Department 2.

Proceeding by Taylor-Edwards Warehouse & Transfer Company, Inc., against the Department of Public Service of Washington and others to review an order of respondent department denying plaintiff's application for extension of its common carrier permit, which application was opposed by Tacoma-Seattle Distributing Company and others. From a judgment affirming the findings and order of the Department of Public Service, plaintiff appeals.

Judgment affirmed.

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

Vanderveer Bassett & Geisness, of Seattle, for appellant.

Smith Troy and R. Paul Tjossem, both of Olympia, for Department of Public Service.

E. K Murray, of Tacoma, for respondents, Inter-City Auto Freight Inc., et al.

Thos. A. Williams, of Seattle, amicus curiae and for interveners.

BLAKE Justice.

Since 1909, plaintiff has been engaged in warehousing and trucking in Seattle. A large portion of its business is the distribution of freight from rail cars at that point. About forty per cent of such freight is delivered to consignees in Seattle, where plaintiff has local cartage rights under a permit granted by the department of public service. 'A large portion of the freight that comes out of these rail cars * * * goes on to other communities * * * such as freight to Spokane, Bellingham, Portland, Tacoma, and smaller towns.' A great deal of the freight is hauled by plaintiff on its regular route operations. Some of it is hauled through other carriers. Of intrastate freight between Seattle and Tacoma, however, plaintiff hauls 'the largest portion.' It has no interstate permit; nor had it any permit for local cartage in the city of Tacoma.

On April 13, 1944, plaintiff made application for the extension of its common carrier permit No. 3740 to authorize it to engage in local cartage of general commodities in the city of Tacoma. Pending hearing on the application, the department granted a temporary permit. Protests against the granting of the application were filed by several carriers in Tacoma already engaged in local cartage under permits from the department. At the hearing on plaintiff's application, several other Tacoma carriers intervened and joined in the protest against its allowance.

After hearing the evidence offered by plaintiff, the protestants and the interveners, the protestants and the interveners, the department made comprehensive findings of fact, from which it concluded 'that the granting of the requested rights would not be in the interests of the shipping public and will tend to impair and jeopardize the stability and dependability of existing service in the area by enabling applicant to divert to itself local distribution business now enjoyed and relied upon by Tacoma carriers to sustain their operations.'

An order denying plaintiff's application was accordingly entered. Plaintiff obtained a writ of review in the superior court for Thurston county, which, after a hearing on the record, entered judgment affirming the findings and the order of the department.

Plaintiff appeals, assigning as error: (1) That the statute under which the order was entered is unconstitutional in that it embraces an unlawful delegation of legislative power; (2) that the evidence does not support the findings of fact made by the department; (3) that the findings do not support the conclusions; and (4) that included in the costs charged against it was the expense incurred by the department in preparing a transcript of the testimony taken at the hearing on the application.

First. The statute under which the validity of the departmental order must be determined is Rem.Rev.Stat. (Rem.Supp.1941), § 6382-5, which, in so far as pertinent, provides:

'No 'common carrier,' 'contract carrier,' or 'temporary carrier' shall hereafter operate for the transportation of property for compensation in this state without first obtaining from the Department a permit so to do under the provisions of this act. * * *

'Nothing contained in this act shall be construed to confer upon any person or persons the exclusive right or privilege of transporting property for compensation over the public highways of the State of Washington, but the department may deny an application when it appears clearly, after public hearing, that the additional service would unreasonably congest the highways or unreasonably endanger the stability and dependability of the service essential to the public needs.

'The Department shall also consider the amount and type of service rendered in any area by any class of service and may deny an application for permit or extension if it appears that the grant of such permit or extension would not be in the interest of the shipping public or would tend to impair the stability or dependability of existing service essential to the public needs or requirements.' (Italics ours.)

As we understand appellant's contention, it is this: That the italicized portions of the statute set up standards for administrative guidance so vague and indefinite as to amount to a delegation of legislative power to the department.

We think appellant's position is without foundation. To begin with, it has no inherent right to move freight over the highways for compensation. State ex rel. Scott v. Superior Court, 173 Wash. 547, 24 P.2d 87; Robertson v. Department of Public Works, 180 Wash. 133, 39 P.2d 596; Prater v. Department of Public Service, 187 Wash. 335, 60 P.2d 238. (This is not to say, however, that a right to do so once acquired and exercised does not become a vested right.)

Plainly, the public policy designed to be subserved in regulating carriers for gain is twofold: (1) To conserve the highways and render them as safe as possible for public travel and (2) to...