Willapa Power Co. v. Public Service Commission , 110 Wash. 193 ( 1920 )

Mitchell, J.

The Willapa Power Company, a corporation, of South Bend, Washington, and the Willapa Electric Company, a corporation, of Baymond, Washington, are, and for some years have been, competitors in the manufacture, sale, and distribution of electricity for heating and lighting, domestic, and municipal purposes. On November 27, 1918, the public service commission duly made and entered an order Axing the minimum rates for the service of the two companies in territory occupied by both. Thereafter, on March 25, 1919, the public service commission made an order canceling its order of November 27,1918. On May 22, 1919, tbe Willapa Power Company commenced this action in tbe superior court of Tburston county against tbe public service commission to have declared void tbe order of March 25, 1919, canceling the order of November 27, 1918, and against tbe Willapa Electric Company for injunctive relief and to recover damages.

The complaint alleges, among other things, that tbe principal place of business of tbe plaintiff is South Bend, Washington, and that it is engaged in public service in tbe city of South Bend and surrounding community; and that the defendant corporation has its principal place of business at Raymond, Washington, and is engaged in public service in the city of Raymond and also in tbe city of South Bend and surrounding community. It is further alleged that tbe defendant corporation, relying on tbe order of March” 25, 1919, has been violating tbe minimum rate order of November 27,1918, to plaintiff’s damage in tbe sum of $2,000 in tbe loss of a number of its patrons to tbe defendant corporation, and that tbe latter threatens to continue, and unless enjoined will continue, to violate tbe terms of tbe order of November 27, 1918, to plaintiff’s irreparable injury. It is further alleged in tbe complaint that tbe order of March 25, 1919, is null and void because made and entered by tbe public service commission without any notice to either of tbe corporations, and of which plaintiff bad no notice until it received a copy of tbe order through tbe mail on March 26, 1919.

Tbe public service commission, appearing separately, moved to dismiss tbe action. Tbe defendant corporation, appearing separately and specially, filed a motion to dismiss which was treated as a demurrer to tbe jurisdiction of tbe superior court of Tburston county. Upon consideration, tbe trial court granted both motions and entered a judgment dismissing the action. The plaintiff has appealed.

As to the public service commission, the remedy chosen in this case is not available. Section 86, chap. 117, Laws of 1911 [Rem. Code, § 8626-86], provides that any complainant or public service company affected by any order of the commission may, within thirty days, apply to the superior court for a writ of review to have the reasonableness and lawfulness of the order inquired into, and by § 99 of the same act [Rem. Code, § 8626-99], it is provided that such order shall be conclusive unless set aside or annulled in a review as in the act provided. State ex rel. Public Service Commission v. Skagit River Tel. & Tel. Co., 85 Wash. 29, 147 Pac. 885; State ex rel. Tacoma Eastern R. Co. v. Public Service Commission, 102 Wash. 589, 173 Pac. 626.

It follows, therefore, that the only remedy a complaining public service company may employ to call in question an order of the public service commission is by a writ of review within the time and in the manner specified in the statute. The rule, however, has the important qualification that, if an order of the commission is void, since it does not bind the parties nor any one else, it may be attacked at any time, even collaterally. State ex rel. Public Service Commission v. Skagit River Tel. & Tel. Co., supra.

As to the dismissal of the action against the respondent corporation, the judgment is erroneous. A superior court is a court of general jurisdiction, and unless the complaint upon its face negatives jurisdiction, the question cannot be raised by demurrer, as jurisdiction will be presumed. Peterson v. Pantheon Lumber Co., 62 Wash. 189, 113 Pac. 562. More accurately speaking, the question here is one of venue; and while it is true the complaint shows upon its face that the respondent corporation has its principal place of business in the city of Raymond, Pacific county, Washington, and that it is doing a public service business within that city and within the city of South Bend and surrounding community, nevertheless, by the record, it does not appear that the respondent corporation does not have in Thurston county an office for the transaction of business, or that no person resides in Thurston county upon whom process may be served against such corporation; nor is there anything in the record to show in what county the process in this case was served. Rem. Code, § 206.

The judgment is affirmed as to the public service commission, reversed as to the Willapa Electric Company.

Holcomb, C. J., Mackintosh, Main, and Pakkek, JJ., concur.