Wishkah Boom Co. v. Greenwood Timber Co.

• Decision Date: 15 December 1915
• Docket Number: 12354.
• Citation: 88 Wash. 568,153 P. 367
• Parties: WISHKAH BOOM CO. v. GREENWOOD TIMBER CO.
• Court: Washington Supreme Court

153 P. 367

88 Wash. 568

WISHKAH BOOM CO. v. GREENWOOD TIMBER CO.

No. 12354.

Supreme Court of Washington, En Banc.

December 15, 1915

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by the Wishkah Boom Company against the Greenwood Timber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Morris C.J., and Mount, J., dissenting.

W. H Abel, of Montesano, for appellant.

Hogan &amp Graham, of Aberdeen (Grosscup & Lee, of Seattle, of counsel) for respondent.

HOLCOMB J.

Respondent brought two actions to foreclose liens for driving and booming logs of the Wishkah river, which actions were consolidated in the court below. Appellant is engaged in logging on a branch of the Wishkah river, and respondent, by means of splash dams, drives appellant's logs down the river to tidewater, where respondent maintains and operates a boom wherein it booms and rafts the logs. Each of respondent's complaints, in the fourth paragraph, alleges that the boom company prior to June 1, 1911, duly established a schedule of uniform rates and tolls, and that the rates so established are 65 cents for driving and 40 cents for booming, and that the same are fair and reasonable rates. In the third paragraph of each answer of appellant, it denied each allegation of respondent's fourth paragraphs, including the allegations that the rates were reasonable, and in the fourth paragraph of each answer it alleged that 35 cents is a reasonable charge and rate for the driving services performed. and that any higher rate would be and is unreasonable and excessive, and that 30 cents is a reasonable boom rate, and that any higher rate would be and is unreasonable and excessive. A stipulation was made in the trial court as to all other facts, to dispense with proof, and the only question left for determination was the reasonableness of the driving and booming rates. On motion of respondent, the trial court struck the fourth paragraph of each answer and also rejected appellant's proffer of evidence as to reasonable rates for driving and booming. Decrees were rendered foreclosing the liens, from which decrees defendant appeals.

1. The trial court erroneously concluded that it was without jurisdiction to entertain the question of the reasonableness or unreasonableness of the rates, for the reason that such jurisdiction exists in the public service commission. It is suggested by counsel for both parties that the public service commission disclaims any jurisdiction over driving and booming companies, and also that under the public service commission act (chapter 117, Laws 1911) no such authority is conferred. Counsel agree that:

'While the public service commission act directly repeals statutes relative to railroads, telephone companies, irrigation companies, and the like, the repealing section makes no reference to the existing booming and driving statutes, and that, since repeals by implication are not favored, the act does not apply to booming or driving companies and operations.'

The public service commission is a body with purely and expressly delegated legislative and political powers. It has no inherent power or authority other than that necessarily incidental to its express and delegated powers. The act creating and controlling it nowhere mentions, in terms, boom companies or driving companies, or their operations or rates. We conclude therefore that the commission has no jurisdiction over them.

2. We now consider the correctness in result of the refusal of the court below to entertain jurisdiction to determine the reasonableness of the rates for driving and booming. The question involves consideration of several distinct statutes, viz., the boom statute of 1890 (Laws 1889-90, p. 470), the driving statute of 1895, and the amendments thereto of 1901 and 1909 (Laws 1909, p. 816). The driving act of 1895 authorized the improvement of rivers and streams to render them navigable for floating logs and timber products. Laws 1895, p. 129, § 4. In consideration of such improvements, the improvers were authorized to render services in driving and 'to charge and collect reasonable and uniform tolls for such services.' The act (page 130, § 5) further provides that:

'Such tolls shall not exceed sixty cents per thousand feet, board measure, on logs, spars or other large timber, and reasonable compensation on all other products, as may be determined by the directors of said corporation; the amount of such logs and other products is to be determined by the usual method of scaling, and such corporation shall have a lien upon all logs and other timber products handled for sluicing, sacking and driving thereof, to be enforced in any manner now or hereafter provided by law for the enforcement of lien for labor on logs.'

This statute was amended in 1901 (Laws 1901, p. 296, § 1) so as to authorize driving companies to establish, charge, and collect reasonable and uniform tolls, not to exceed $1 per thousand feet, board measure, on all logs, spars, or other large timber, and reasonable compensation on all other timber products for sluicing, sacking, and driving same, and further provided that, in case any such corporation shall be engaged in booming and rafting logs and other timber so sluiced, sacked, and driven, it might charge, collect, and receive an additional sum not to exceed 60 cents per thousand feet for logs, spars, and other large timber, and reasonable compensation on all other timber products may be charged for booming and rafting the same. In 1909 the statute was again amended in some particulars, leaving the provisions as to the adoption of uniform and reasonable rates and tolls, and the maximum rates that such driving and booming companies might charge, the same. We observe that the statutes in question require that the rates and tolls adopted 'shall be reasonable and uniform.' Without these requirements the legislation would be open to the objection of repugnance to the provisions of the federal and state Constitutions. No objections are here urged by appellant except by way of contention that, since under said statutes the services may be performed without the consent of the owner of the logs, it would clearly be an unconstitutional taking of his property to charge more for the improvement and service than the same is reasonably worth; that as to such excess the charge would be an illegal exaction and an unconstitutional taking. We have heretofore held that the performance of such service and the charge imposed therefor, although in invitum, was valid. East Hoquiam Boom Co. v. Neeson, 20 Wash. 142, 54 P. 1001.

There is no contention of any discrimination by respondent in fixing and charging its rates. The appellant maintains that the Legislature not merely fixed maximum rates, but further provided that whatever tolls and rates such boom and driving companies did establish should not only be uniform and nondiscriminating, but reasonable, and that therefore the court had jurisdiction to inquire into the question of rates. This is the sole question here involved. By this position appellant maintains that, although the Legislature established maximum rates for the services performed, and although it delegated to the trustees of the corporation, who should improve such logging streams and render services to owners of logs in driving and booming them, authority and power within fixed limitations of fixing rates, the question was left open to examination by the courts as to whether rates so established and within the maximum fixed by law were in fact reasonable.

Appellant cites Beale and Wyman, Railroad Rate Regulation, § 1313, to this effect:

'To whatever body the power of fixing rates may be confided, it is the function of the regular courts to pass upon the reasonableness of the rates thus established; and the courts cannot be deprived of this power. The question of reasonableness cannot be so conclusively determined by the Legislature of the state, or by regulations adopted under its authority, that the matter may not become the subject of judicial inquiry,'

--and cites Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 14 S.Ct. 1047, 38 L.Ed. 1014, and Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U.S. 418, 10 S.Ct. 462, 702, 33 L.Ed. 970, to the effect that the question of the reasonableness of a rate charged for transportation by a railroad company is eminently a question for judicial investigation, requiring due process of law for its determination. But in the Reagan Case the court say:

'The courts are not authorized to revise or change the body of rates imposed by a legislature or a commission; they do not determine whether one rate is preferable to another, or what under all circumstances would be fair and reasonable as between the carriers and the shippers; they do not engage in any mere administrative work. * * *'

Respondent to the contrary, insists that the legislation in question is based upon the principle that the establishment of a rate is the making of a rule for the future, and therefore is an act legislative, not judicial, in kind. Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150. It insists that what we are asked to do in the instant case is to 'make a rate for the individual case; that, if the appellant's view as to that end should be adopted, it would result in a court assuming to be a rate-making power in every individual case; courts have no such power; they can, in the absence of statutory regulation, sometimes prescribe such rules as to protect the public against unreasonable, arbitrary, and unjust rates; their duty, however, is generally ended when, after careful consideration of the facts of the particular case before them and after weighing the...