State ex rel. Allen v. Public Service Commission

Mount, J.

The relator brings this action in mandamus to compel the public service commission to exercise jurisdiction over a certain ferry for the purpose of regulating the service and the rates of such ferry. The public service commission has refused to exercise jurisdiction over ferries because it is of the opinion that the exclusive jurisdiction over and control of ferries is vested in the county commissioners of the various counties of the state under the provisions of §§ 4998 to 5013-1, inclusive, Rem. Code.

The case presents but one question, namely: Did the act of 1911 (Laws of 1911, p. 538; Rem. Code, § 8626-1 et seq.), known as the “Public Service Commission Law,” repeal by implication §§ 4998 to 5011, Rem. Code, relating to ferries? These sections will hereafter be referred to as the “ferry law.”

The ferry law was originally passed in 1854 (Laws of 1854, p. 353), and, with various amendments, the last of which was made in 1915 (Laws of 1915, p. 59), constitutes §§ 4998 to 5013-1, Rem. Code. These sections make a complete law relating to ferries. This law provides that the board of county commissioners of any county in the state may grant a license to any person entitled to keep a ferry across any lake or stream within its respective county for a term not exceeding five years. It provides for an annual license fee to be paid to the county, the manner in which licenses may be granted, and the duties of the licensee. It also provides that the county commissioners may fix the rates of ferries and penalize the licensee for failure to perform the duties of ferryman. It gives to the county commissioners complete control of ferries within their counties. That control has been exercised since 1854 to the present time. In 1905 (Laws of 1905, p. 145 et seq.), the legislature passed an act establishing a railroad commission and giving that commission .certain powers over railroads within the state. This act was amended in 1907 (Laws of 1907, pp. 275, 536 and 691); and in 1909 (Laws of 1909, p. 191) additional powers were given to the railroad commission so as to include express companies and telephone and telegraph lines. In 1911 (Laws of 1911, p. 538), the legislature passed the public service commission law, making the former railroad commission the public service commission, giving that commission certain powers over public utilities generally, and expressly repealing the acts above referred to as the railroad commission acts. In none of these acts relating to railroads or other public service corporations is any mention made of the law relating to ferries. The relator argues that the law in relation to ferries, passed in 1854, was a general law because at that time ferries were about the only public utilities which existed in this state. It is true that many of the public utilities we now have did not then exist, but there were other public utilities, such as vessels plying upon the waters of the state, stage coaches upon the highways, and, no doubt, canals. It seems too plain for argument that the law of 1854 relating to ferries was a special law upon the subject of ferries alone. "While it is true that the act of 1911, at § 8, defines the term “vessel” to include every species of water craft used in the conveyance of persons for hire, we think that term applies to vessels other than ferries licensed as such; and while the act of 1911 defines the term “public service companies” to include every common carrier, and while it is also true that a ferryman is a common carrier, we are of the opinion that it was not the intention of the legislature, in passing the act of 1911, to repeal, by implication or otherwise, the ferry law; because, in order to effect a repeal of a former act by implication, it must appear “that the subsequent statute covers the whole subject-matter of the former one and was intended to take its place.” State ex rel. Johnson v. Clausen, 51 Wash. 548, 99 Pac. 743; Hewitt-Lea Lumber Co. v. Chesley, 68 Wash. 53, 122 Pac. 993; White v. North Yakima, 87 Wash. 191, 151 Pac. 645. At page 554, in the first case cited, we quoted from Meade v. French, 4 Wash. 11, 29 Pac. 833, as follows:

“ ‘Hence the rule obtains that repeals by implication are not favored, and courts will seek to harmonize the laws and preserve them, rather than declare them abrogated or repealed; and if by any reasonable construction they can stand together, they will both- be enforced; . . ”

If it had been the intention of the legislature to supersede any part of the law relating to ferries, we think it would have made that intention plain. At the time the public service commission act was pending in the legislature, three days after its passage, the legislature authorized port districts to acquire and operate ferries (Laws of 1911, p. 418); and in 1915 (Laws of 1915, p. 59; Rem. Code, § 5013-1), the legislature authorized the county commissioners of certain counties to construct and maintain interstate ferries; thus indicating that the power as defined by the ferry law over ferries was not taken away from the county commissioners. The public service commission is not given power to license ferries or to say when or where a ferry may be constructed or operated. There is no word in the public service act of 1911 regarding ferries. The power to license them is, therefore, without doubt, left to the county commissioners as provided in the ferry law. It follows, therefore,- that the public service commission act does not attempt to cover the whole subject of ferries and does not take its place. Ferries are local to the counties in which they are situated, and it is reasonable to súpose that the legislature determined that the local county authorities could fix and regulate rates and service as well as the public service commission, and for that reason did not repeal, and did not intend to repeal, any part of the ferry law.

The writ is therefore denied.

Mitchell, Fullerton, Main, Tolman, Parker, Bridges, and Mackintosh, JJ., concur.