Elkins v. Schaaf

The complaint to which the demurrer was sustained states:

"That none of the plaintiffs are now engaged nor have they been engaged as common carriers in the State of Washington, and none of them have undertaken to transport property for the general public by motor vehicle for compensation, either over regular routes or on regular or irregular schedules. That plaintiffs and neither of them are persons who, under special or individual contracts or agreements, transport property by motor vehicle for compensation. The plaintiffs and neither of them are persons engaged exclusively or at all in the transportation of logs, piling, poles, pulp wood, coal, minerals, sand, gravel, rock and other building materials in vehicles especially constructed and equipped for handling such commodities, and operating for compensation. That plaintiffs and neither of them are persons engaged in the transportation in their said vehicles of property owned, sold, or to be sold, by them or either of them in the furtherance of any private commercial enterprise or for the purpose of lease, rent, or bailment.

"That none of the plaintiffs are now engaged, nor have they been engaged for compensation, to perform a combination of services, which includes transportation of property of others, either as a common carrier or as a contract carrier, upon the public highways of the State of Washington, nor any combination of services, including transportation of products, for hire, over any highways of the State of Washington.

"That none of the plaintiffs are engaged in carrying on the business of common carriers or special carriers or private carriers or motor carriers or contract carriers, or rendering a combination of services, within the defined meaning of Section II of Chapter 184 of the Laws of the State of Washington of 1935, as Amended by Chapter 166 of the Laws of 1937 of the State of Washington, or any of the rules or regulations lawfully promulgated by the Department of Public Service or the Public Service Commission of the State of Washington.

"That none of the said plaintiffs are engaged in carrying on any business on the public highways of the State of Washington. That the only use that the plaintiffs desire to make of the highways is in connection with their said business of logging contractors and in carrying out the terms of said contracts herein referred to. That the said use of the said roads by the said plaintiffs and each of them is only incidental to their said business and only a very trifling part of their said business is upon or connected with the highways of the State of Washington. . . .

"That plaintiffs and each of them allege that if they are required to comply with the demands of the defendants hereinbefore set forth, they will not be able to carry on their said contracts with any profit to them or either of them. That they will not be able to make any use whatever of their said trucks and equipment used in their logging operations. That any construction of the said Chapter 184 of the Session Laws of the State of Washington for 1935, as amended, requiring the plaintiffs to comply with the said demands, will result in the taking of plaintiffs' property without due process of law and in violation of the Fourteenth Amendment of the Constitution of the United States."

Copies of the contracts attached to and made a part of the complaint affirm the allegations to which I have just referred.

As stated in the majority opinion, the parties here involved were before this court in Elkins v. Schaaf, 189 Wash. 42,63 P.2d 421. In that case, we had before us the identical contracts for logging with the same parties, and the same use of the highway as in the instant case. This court, in passing upon the factual situation, stated:

"None of the respondents has undertaken to transport property for the general public by motor vehicle for compensation either over regular or irregular routes, or on regular or irregular schedules. None of the respondents is under special or individual contract or agreement to transport property by motor vehicle for compensation. None of the respondents is a person engaged exclusively or at all in the transportation of logs, piling, poles, pulpwood, coal, minerals, sand, gravel, rock and other building materials in vehicles especially constructed and equipped for handling such commodities, and operating for compensation. None of the respondents is engaged in the transportation in his own vehicle of property owned, sold or to be sold by him in the furtherance of any private commercial enterprise or for the purpose of lease, rent or bailment.

"The trial court correctly found that none of the respondents is engaged in carrying on any business on the public highways of the state of Washington. The only use the respondents desire to make of the highways is in connection with their business of logging contractors and in carrying out the terms of their contracts with the Panhandle Lumber Company. The use of the highways by the respondents is incidental only to their business as logging contractors.

"To state the facts is to declare the law. In the statutory definition of `special carrier' and the definition by the statute of `contract carrier,' chapter 184 of the Laws of 1935 limited the application of the act to those persons who, under special and individual contracts or agreements, transport property by motor vehicle for compensation. Further buttressing the position of the trial court is subd. (g), § 2 of chapter 184, p. 884, respecting special carriers, quoted above, which section of the statute is applicable to the hauling of logs, etc., and manifestly shows no intent by the legislature to include operations such as those in which the respondents are engaged.

"We agree with the following argument of counsel for the respondents:

"`On the contrary, by the terms "operating for compensation" or "for compensation" the legislature meant compensation pursuant to contract or agreement for the trucking, the regulation of such compensation being one of the chief purposes of the Act. In this case, respondents were doing their own trucking. Their use of the road was an ordinary use incidental to carrying on their business as loggers and not a special business use.'"

The legislature could not and did not attempt to change the facts already decided. Appellants have not changed their occupation. They are now and have been loggers engaged exclusively in the business of logging and using a small part of the highway incidentally in conducting their private business enterprise. They are not engaged in the business of transporting goods upon the highways of this state for the general public within the meaning of either the old or the new act. The legislature attempted only to regulate those who used the highways as a place to transact their business.

This is borne out by the contents of § 1, Laws of 1937, chapter 166, p. 623, which reads:

"The business of operating as a motor carrier of freight for compensation along the highways of this state is declared to be a business affected with a public interest. The rapid increase of motor carrier freight traffic and the fact that under the existing law many motor trucks are not effectively regulated have increased the dangers and hazards on public highways and make it imperative that more complete regulation should be employed to the end that the highways may be rendered safer for the use of the general public; that the wear of such highways may be reduced; that congestion on highways may be minimized; that the shippers of the state may be provided with a stabilized service and rate structure; that sound economic conditions in such transportation and among such carriers may be fostered in the public interest; that adequate, economical and efficient service by motor carriers, and reasonable charges therefor, without unjust discrimination, undue preferences or advantages, or unfair or destructive competitive practices may be promoted; that the common carriage of commodities by motor carrier may be preserved in the public interest; that the relations between, and transportation by and regulation of, motor carriers and other carriers may be improved and coordinated so that the highways of the State of Washington may be properly developed and preserved, and the public may be assured adequate, complete, dependable and stable transportation service in all its phases." Rem. Rev. Stat., Vol. 7A, § 6382-1 [P.C. § 234-13 1/2a].

Section 4-a was intended to restrain only those who in fact conducted their business upon the highways and who attempted, by entering into an additional contract with others, to escape the regulations of the department by undertaking to perform other acts of business. It was not intended to bring within the provisions of the act one who was a private carrier.

Assuming that the legislative intent was to bring appellants within the act, then it must be held that the act is unconstitutional in that it seeks to subject the private carrier to regulations which are applicable only to common carriers.

Common carriers are such by reason of the business which is carried on by them.

"It is manifest that a common carrier is one whose occupation is the transportation of persons or things from place to place for hire or reward, and who holds himself out to the world as ready and willing to serve the public indifferently in the particular line or department in which he is engaged; the true test being whether the given undertaking is a part of the business engaged in by the carrier which he has held out to the general public as his occupation, rather than the quantity or extent of the business actually transacted, or the number and character of the conveyances used in the employment. On the other hand, if the undertaking be a single transaction, not a part of the general business or occupation engaged in, as advertised and held out to the general public, then the individual or company furnishing such service is a private and not a common carrier. In either case the question must be determined by the character of the business actually carried on by the carrier and not by any secret intention or mental reservation it may entertain or assert when charged with the duties and obligations which the law imposes." Cushing v. White, 101 Wash. 172, 172 P. 229.

Of like import are State ex rel. Public Utilities Commissionv. Nelson, 65 Utah 457, 238 P. 237, 42 A.L.R. 849; Gornstein v. Priver, 64 Cal. App. 249, 221 P. 396;Georgia Life Ins. Co. v. Easter, 189 Ala. 472, 66 So. 514, L.R.A. 1915C, 456.

Appellants are private carriers engaged in a private enterprise. The contract, the pleadings, our prior decision, and the holdings of the supreme court of the United States establish that fact.

The lawmaking body of the state cannot by legislative command make of a private carrier a public carrier and by such act compel him to observe the law relative to common carriers. Mere legislative declaration that the use of a particular kind of property is affected with a public interest is not conclusive upon the question of the validity of the regulation.

"In our opinion, the question of the character of the corporation is one of fact and must be determined by the courts upon the evidence presented in the record. In the case ofCushing v. White, 101 Wash. 172, 172 P. 229, L.R.A. 1918F 463, the question of the character of the corporation was determined by the court upon the evidence, and the effect to be given to the finding of the commission was not discussed. InAssociated Pipe Line Co. v. Railroad Commission of California,176 Cal. 518, 169 P. 62, L.R.A. 1918C 849, the supreme court of California, in answering the contention that the declaration of the legislature of the character of a carrier would make it a common carrier irrespective of the facts, says:

"`Indeed, such legislation, if attempted, would have been futile, since under the Fourteenth Amendment of the Federal constitution no state shall deprive any person of property without due process of law, and to take or devote private property to public use without compensation is such deprivation.'

"In Producers' Transportation Co. v. Railroad Commission ofCalifornia, 251 U.S. 228, 40 Sup. Ct. Rep. 132, the supreme court of the United States said:

"`It is, of course, true that if the pipe line was constructed solely to carry oil for particular producers under strictly private contracts and never was devoted by its owner to public use, that is, to carrying for the public, the state could not, by mere legislative fiat or by any regulating order of a commission, convert it into a public utility or make its owner a common carrier; for that would be taking private property for public use without just compensation, which no state can do consistently with the due process of law clause of the Fourteenth Amendment.'" State ex rel. Silver LakeR. L. Co. v. Public Service Commission, 117 Wash. 453,201 P. 765, 203 P. 3.

"Moreover, it is beyond the power of the State by legislative fiat to convert property used exclusively in the business of a private carrier into a public utility, or to make the owner a public carrier, for that would be taking private property for public use without just compensation, which no State can do consistently with the due process of law clause of the Fourteenth Amendment. Producers Transportation Co. v. Railroad Commission,251 U.S. 228, 230; Wolff Co. v. Industrial Court, 262 U.S. 522, 535." Michigan Public Utilities Commission v. Duke,266 U.S. 570, 69 L. Ed. 445, 45 S. Ct. 191, 36 A.L.R. 1105.

We said in Big Bend Auto Freight v. Ogers, 148 Wash. 521,269 P. 802:

"It is also well established that a shipper such as the Big Bend Milling Company may have its goods shipped by private contract by private carrier, and that such does not constitute a violation of our public utilities act. State ex rel. StimsonTimber Co. v. Kuykendall, 137 Wash. 602, 243 P. 834, U.S. Adv. Ops. 1927-28, p. 50. In this case, the supreme court of the United States, speaking through Mr. Justice Butler, said:

"`Relator does not here contest the reasonableness of the rate; it does not question the power of the state or the authority of the Department to prescribe and enforce reasonable rates for transportation by common carriers on Puget Sound, and adjacent waters in Washington; it does not contend that, if the Shively Company was a common carrier of logs by tow boat, the agreement for transportation of relator's logs for less than the tariff would be valid, or that the order complained of would not be valid. It is established that, consistently with the due process clause of the 14th Amendment, a private carrier cannot be converted into a common carrier by mere legislative command. Frost F. Trucking Co. v. Railroad Commission,271 U.S. 583, 592, 70 L. Ed. 1101, 1104, 47 A.L.R. 457, 46 Sup. Ct. Rep. 605; Michigan Pub. Utilities Comm. v. Duke, 266 U.S. 570,577, 69 L. Ed. 445, 449, 36 A.L.R. 1105, 45 Sup. Ct. Rep. 191.'"

See, also, Tyson Brother v. Banton, 273 U.S. 418,71 L. Ed. 718, 47 S. Ct. 426, 58 A.L.R. 1236; New State Ice Co. v.Liebmann, 285 U.S. 262, 76 L. Ed. 747, 52 S. Ct. 371.

In Frost Frost Trucking Co. v. Railroad Commission,271 U.S. 583, 70 L. Ed. 1101, 46 S. Ct. 605, 47 A.L.R. 457, the supreme court of the United States had before it facts which are almost identical with those presented in the case at bar. A statute of the state of California provided for the supervision and regulation of transportation for compensation over public highways by automobiles, trucks, etc. Plaintiffs were engaged under a single private contract in transporting, for stipulated compensation, citrous fruit over the public highways between fixed termini. The California commission held that plaintiffs were subject to the provisions of the act and made an order compelling them to secure a certificate of public convenience and necessity. The case was appealed to the supreme court of California and the order of the commission affirmed by that court. Frost v. Railroad Commission, 197 Cal. 230, 240 P. 26.

The decision of the California court was reversed, holding that the act under review, as applied by the California court, violated the rights of plaintiffs as guaranteed by the due process clause of the fourteenth amendment, and that the privilege of using the public highways of California in the performance of their contract was not and could not be affected by the condition imposed.

Of like import are Smith v. Cahoon, 283 U.S. 553,75 L. Ed. 1264, 51 S. Ct. 582; State ex rel. Public Utilities Commission v.Nelson, 65 Utah 457, 238 P. 237, 42 A.L.R. 849; State v.Smith, 31 Ariz. 297, 252 P. 1011; Hissem v. Guran, 112 Ohio St. 59,146 N.E. 808; and Towers v. Wildason, 135 Md. 677,109 A. 471.

These decisions, and many others that could be cited to the same effect, prove clearly that a legislature cannot, by defining the phrase "common carriers," bring within the provisions of the act in question persons who are, as a matter of fact, private carriers.

To allow the legislature to make such definitions, would give it power to compel every traveler upon the highways of the state to procure certificates of convenience and necessity, and to comply with the rules and regulations of the department relative to common carriers. Such laws, to my mind, are unconstitutional.

The case of Prater v. Department of Public Service, 187 Wash. 335,60 P.2d 238, is not apposite. That case involved the right to regulate a contract carrier; one who used the highways upon which to conduct his business of transporting commodities for a consideration. True, in that case this court stated:

"We have no hesitancy in holding that the transportation of property on the public highways for gain is a business affected with a public interest."

That principle had been upheld in Stephenson v. Binford,287 U.S. 251, 77 L. Ed. 288, 53 S. Ct. 181, 87 A.L.R. 721 (1932).

However, in the case at bar, we are not concerned with the right of a state to regulate common or contract carriers, but rather whether a private carrier may be compelled against his will to assume the burdens and duties of a common or contract carrier.

Judge Parker, speaking for the court in Carlsen v. Cooney,123 Wash. 441, 212 P. 575, clearly demonstrated the reason for limiting the jurisdiction of any state department having to do with the regulation of motor vehicles upon the highways when he stated:

"Counsel for plaintiff seem to rest their argument against defendant's claimed right to operate his motor trucks over the public highways as he is operating them wholly upon the provisions of § 2, ch. 111, Laws of 1921, p. 339 (Rem. Comp. Stat., 6388), above quoted. Indeed, we would be at a loss to see what other possible ground of support their argument could have. If the language of that section stood alone, and the exception therein be ignored, it would, indeed, be difficult to escape the conclusion that it meant what counsel for plaintiff contends for, startling as such an expression of legislative intent would seem to be. If that section means in its present setting all that is claimed for it by counsel for plaintiff, then it means that nowhere upon the public highways of our state can a person, not engaged in hauling between fixed termini or over a regular route, haul in his motor vehicle any property of another for compensation, however special his contract for such hauling, or however casual such hauling might be. A farmer having an automobile could not lawfully haul for compensation for his neighbor goods from town to his neighbor's home which the latter might have occasion to have so hauled. One owning a motor truck, not engaged in the business which ch. 111 purports to regulate, could not lawfully haul wood in such truck for compensation on any portion of any public highway of this state. The humble expressman and drayman, so commonly in business in and about our towns and cities, could not, with his little automobile truck, lawfully haul for another for compensation; all simply because this seemingly farreaching provision of § 2, of ch. 111, in terms so declares, when read apart from any thought of the real purpose of the act."

Appellants, many years before the legislature sought to restrict their operations, were engaged in conducting a private business enterprise under a contract between themselves and a company that owned timber lands, and they should not now have their private business interrupted and destroyed because the legislature desires to have them controlled. Such acts on the part of the legislature, as interpreted by this court and by the supreme court of the United States, violate the provisions of the fourteenth amendment.

For the reasons given, I dissent.

STEINERT and ROBINSON, JJ., concur with SIMPSON, J.