Weyerhaeuser Timber Co. v. Henneford

• Citation: 185 Wash. 46,53 P.2d 308
• Decision Date: 03 January 1936
• Docket Number: 25911.
• Parties: WEYERHAEUSER TIMBER CO. v. HENNEFORD et al.
• Court: United States State Supreme Court of Washington

53 P.2d 308

185 Wash. 46

WEYERHAEUSER TIMBER CO. v. HENNEFORD et al.

No. 25911.

Supreme Court of Washington, En Banc.

January 3, 1936

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

Action by the Weyerhaeuser Timber Company against H. H. Henneford and others, as Commissioners of the Tax Commission of the State of Washington. Judgment for defendants, and plaintiff appeals.

Reversed.

W. E Heidinger, of Tacoma, for appellant.

G. W Hamilton and R. G. Sharpe, both of Olympia, for respondents.

HOLCOMB Justice.

Appellant is a corporation organized and existing under and by virtue of the laws of this state, and engaged in the business of manufacturing lumber. The corporation owns extensive timber lands in the counties of Thurston, Lawis, and Cowlitz, from which it cuts timber for use in its mills. In order to transport its timber products, it has constructed and owns and operates two logging railroads; one extending from its lands in Thurston county to its plant in Lewis county, the other connecting its properties located in the counties of Cowlitz and Lewis. These logging railroads have been by appellant used exclusively for the transportation of its own forest products to its own mills.

Respondents composing the state tax commission, contending that appellant, because of its ownership and operation of its logging railroads, falls within the purviews of chapter 123, p. 356, of the Laws of 1935, demanded of appellant that it make return to them, giving information concerning its logging railroads, pursuant to the statute above referred to. Appellant, contending that its operations do not fall within the act, brought this action to enjoin them, as the state tax commission, from requiring it to make any return or report in connection with its logging railroads. Respondents demurred to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action. The trial court having sustained this demurrer, appellant elected to stand upon its complaint, and, from a judgment dismissing its action, has appealed.

In this complaint appellant alleges, and it is admitted by demurrer, that it is not engaged in the business of transporting forest products either as a private carrier or carrier for hire and is not engaged in the business of carrier at all, either private or public, for hire or otherwise, but uses its logging railroad, cars, and locomotives, solely and exclusively in conveying and transporting its own logs and forest products from its own timber lands to its own mills for its own use.

The only assignment of error made is that the trial court erred in sustaining respondents' demurrer and dismissing the action.

The title of chapter 123, Laws of 1935, reads: 'An act relating to the assessment and taxation of the property of railroad companies, motor vehicle transportation companies, airplane companies, electric light and power companies, telegraph companies, telephone companies, gas companies, pipeline companies, water companies, heating companies, toll bridge companies, steamboat companies, and logging railroad companies; providing penalties for the violation thereof; repealing sections 35 to 50, inclusive, of chapter 130, Laws of the Extraordinary Session of 1925, and all other acts and parts of acts in conflict therewith; and declaring that this act shall take effect immediately.'

By subdivision (14), of § 1, of the act, the term 'logging railroad company' is defined as follows: 'The term 'logging railroad company' shall mean and include any person owning, controlling, operating or managing real or personal property, used or to be used for or in connection with or to facilitate the conveyance and transportation of forest products by rail in this state, and engaged in the business of transporting forest products either as private carrier or carrier for hire.'

Section 3 prescribes that the companies mentioned in the title shall make annual reports of their properties to the state tax commission; section 7 of the act provides for the assessment of such properties by the commission for purposes of taxation.

Appellant argues that all of the businesses referred to in the title of the act or in the body thereof, with the exception of logging railroad companies, are public utilities, which are subject to state regulation, and are required to file rate schedules and obligated to render service to the public for compensation. Appellant also insists that the only logging railroad companies known to the statute law of this state are the so-called 'toll logging railroad companies,' organized pursuant to chapter 82, p. 161, Laws of 1905 (Rem.Rev.Stat. §§ 8395-8398), which are by the statute referred to as 'quasi-public companies,' and are common carriers, in so far as forest products are concerned. Such companies are by the statute granted the right of eminent domain, and are accordingly required to render, on demand, service to the public, from which they receive compensation.

Appellant contends that, as the state tax commission and its statutory predecessor has for many years assessed the operating properties of public utilities, but has not assessed property belonging to private corporations not devoted to the public service, it should be assumed that, in enacting the statute now under consideration, the Legislature had in mind the procedure which had in this state been followed for many years, and that the statute should not, by implication merely, be construed against its contention.

In the eyes of the law, a private carrier is one who by special contract agrees to transport merchandise from one place to another, either gratuitiously or for hire.

This court, in Cushing v. White, 101 Wash. 172, 172 P. 229, L.R.A.1918F, 463, defined with great precision both common and private carriers, adopting and approving definitions from text-writers and some decisions. Among the texts there approved were these:

'The private carrier is one who, without engaging in such business as a public employment, undertakes by special contract to transport goods in particular instances from one place to another.' Dobie on Bailments and Carriers, § 106.

'A carrier is one that undertakes the transportation of persons or movable property, and the authorities, both elementary and judicial, recognize two kinds or classes of carriers, namely, private carriers and common carriers. A private carrier is one who, without being engaged in such business as a public employment, undertakes to deliver goods in a particular case for hire or reward. While a common carrier has been defined as one that holds itself out to the public to carry persons or freight for hire.' 10 C.J. § 1.

In Forsyth v. San Joaquin Light & Power Corporation, 208 Cal. 397, 281 P. 620, 623, we find:

'Private carriers are such as carry for hire and do not come within the definition of common carrier.'

'A private carrier is one who does not engage in the business of carrying, or does not hold himself out to carry certain kinds or classes of property. He is one who is under no duty or obligations to make the carriage, is at liberty to refuse to accept it as he pleases, and will undertake it only upon terms satisfactory to himself.' Cleveland, C., C. & St. L. Ry. Co. v. Henry, 170 Ind. 94, 83 N.E. 710, 712.

'A private carrier is one who...