United Truck Lines, Inc. v. Department of Public Works of Washington

• Decision Date: 02 April 1935
• Docket Number: 25465.
• Parties: UNITED TRUCK LINES, Inc., v. DEPARTMENT OF PUBLIC WORKS OF WASHINGTON et al.
• Court: Washington Supreme Court

42 P.2d 1104

181 Wash. 318

UNITED TRUCK LINES, Inc., v. DEPARTMENT OF PUBLIC WORKS OF WASHINGTON et al.

No. 25465.

Supreme Court of Washington

April 2, 1935

Department 2.

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

Action by the United Truck Lines, Inc., against Department of Public Works of the state of Washington and others to review order of Department of Public Works denying plaintiff's application for a permit to operate as a contract hauler. From a judgment affirming such order, plaintiff appeals. On motion to dismiss appeal.

Motion granted.

Vanderveer & Bassett, of Seattle, for appellant.

G. W Hamilton, of Olympia, and Don Cary Smith, of Spokane, for respondents.

STEINERT Justice.

This is an appeal from a judgment of the superior court affirming an order of the Department of Public Works wherein an application for a permit to operate as a contract hauler was denied.

August 20, 1934, appellant filed with the department an application for a permit to operate as a contract hauler between Spokane and Seattle via Wenatchee Vantage Ferry, or Pasco. The permit was filed under, and pursuant to the provisions of, chapter 166, Laws 1933 (page 613).

Respondent Caters Motor Freight System, a corporation, a certificate owner, filed a written protest against the application, on the ground that, if granted, the permit would result in unnecessary duplication of existing transportation facilities and would injure the business of the protestant, jeopardize its investment, and tend to impair the service already being rendered to the public.

The matter came on for hearing Before the department's examiners on September 11, 1934, at which time Consolidated Freight Lines, Inc., joined in the written protest of Caters Motor Freight System, and the other respondent companies noted their protest to the application. After the taking of considerable evidence, the department, on September 28, 1934 entered its findings concluding with an order denying the application. Shortly thereafter, that is, on October 4, 1934, the appellant herein, the applicant for the permit, began an action by summons and complaint in the superior court for Thurston county, seeking a review of the proceedings previously had Before the department and requesting a restraining order against the department, its officers and employees, to prevent them from interfering with the operation of appellant's trucks in the meantime. The department and its officers, and the various protestants, were made parties to the action, in the complaint filed by appellant. The court refused to grant the restraining order, but directed the issuance of a writ of review requiring the department to certify and file with the clerk of the court a transcript of the entire record and proceedings relating to the application for permit. The department complied with the writ and filed in the superior court a transcript of its records and proceedings in the matter. A hearing at which the appellant, the department, Caters Motor Freight System, and Consolidated Freight Lines, Inc., were present and represented, was had on October 19, 1934, and the cause taken under advisement. The court subsequently filed a memorandum opinion, and on October 30, 1934, entered its judgment affirming the findings and order of the department and dismissing the petition for writ of review. From that judgment, this appeal was taken, or November 9, 1934, and a bond for costs was filed about the same time.

In the meantime, that is, after the action had been commenced in the superior court and after appellant's application for a temporary restraining order had been denied, but Before the hearing on the merits had October 19th, appellant herein began an action against the Department of Public Works and its officers, in the United States District Court for the Western District of Washington, seeking an injunction, interlocutory and permanent, to prevent the department from interfering with the operation of its motor freight trucks. The complaint therein constituted an attack upon the findings and order of the department made on September 28, 1934, referred to above, upon the ground that the motor vehicle statute, as interpreted by the Department of Public Works, was unconstitutional and void, because it subjected appellant, a private carrier, to the burdens of a common carrier. In other words, an attack upon the department's order was being waged in the superior court and in the District Court at the same time. The department and its officers appeared in the action in the District Court and moved to dismiss the same. On January 21, 1935, which was after the superior court had entered its judgment, the District Court, composed of three judges, handed down its memorandum decision denying the motion to dismiss and directing the issuance of an interlocutory injunction. So, on January 21, 1935, we have a situation where the superior court had sustained the action of the department and the District Court had, in effect, reversed it.

After the appeal had been taken in this action on November 9, 1934, and while the action in the federal court was still pending, appellant filed in this court a statement of facts from the superior court. It did nothing further, however, until after the Attorney General, representing the department, had taken the steps hereinafter mentioned.

On January 17, 1935, the department, through the Attorney General, prepared a motion to dismiss the present appeal. The motion, with an accompanying affidavit dated January 17, 1935, was served upon appellant's attorneys and filed January 22, 1935, one day after the memorandum decision of the District Court had come down. The ground of the motion was that the appeal had not been perfected as provided by law. The motion was noted for hearing and was heard on the motion day of February 8, 1935. On February 5, 1935, appellant served its brief, and on February 7, 1935, filed the same in this court. The brief, therefore, was on file on the day that the motion was argued.

The matter...