130 Wash. 511 | Wash. | 1924
Lead Opinion
The appellant holds from the department of public works a certificate of public convenience "and necessity for the operation of a motor vehicle furnishing passenger and freight service between Chelan, Chelan Station, Lakeside, Manson and "Wenatchee, all being points in Chelan county. The certificate was issued in May, 1922, and the appellant since its issuance has complied with all the requirements of the law and has operated under the rules of the department of public works. The respondent, possessing no certificate, undertook to transport freight between the points named in the appellant’s certificate, and the appellant then began an action seeking to enjoin the respondent from the unlawful interference. The action resulted in the court entering a decree of injunction October 24, 1922. Thereafter and in April, 1923, the respondent moved to have the injunction modified, and the court denied the motion. An order to show cause was made in May, 1923, directed to the respondent, to show cause why he should not be punished for contempt of court for violating the terms of the injunction decree; it being alleged by the appellant that the respondent, although fully aware of the injunction, continued to transport freight between the points named in the appellant’s certificate. The order to show cause came on to be heard and the court found that the respondent was
It having been shown that the respondent was carrying freight between the points named in the appellant’s certificate, it only becomes necessary to determine whether the excuses given for this conduct are sufficient.
The first one, that the carrying was done without compensation presents no valid reason for the respondent’s interference with the appellant’s business. We have several times held, in considering cases arising under this law relating to certificates of public convenience and necessity, that the certificate holder is entitled to protection from unlawful interference, and it matters not that that interference may result in no compensation being paid to the one interfering; the rights of the certificate holder will not be measured by the remuneration which the invader of that right may receive.
The second point, that the respondent’s carrying freight from and to Manson is not a violation of the injunction because Manson is an unincorporated town is also without merit; and for these four reasons: (a) In the original injunction proceeding, this very question was raised by the pleadings and affidavits, which presented the point that Manson was an unincorpo
(b) Furthermore, the respondent after the rendering of the injunction decree, attempted to have it modified, at which time he could have raised the point that he is now relying on, but he saw fit not to do so and attempted to have the decree modified on entirely different grounds, thereby in effect acquiescing in the prior determination that Manson was a'proper terminus.
(c) The question of the termini between which the holder of a certificate is to operate is a question for the determination of the department of public works, being made so especially by Rem. Comp. Stat., § 6387, which defines what “between fixed termini and over regular routes shall mean,” and provides that the determination of the termini “within the meaning of this act shall be a question of fact and the finding of the commission thereon shall be final and shall not be subject to review.”
(d) A terminus does not have to be an incorporated town nor is it so circumscribed in its boundaries that the holder of the certificate of convenience and necessity must run his motor vehicle up to a designated hitching-post. The fact that Manson may be an agricultural community “two miles wide and six miles long” does not prevent its being the terminus of a stage or freight line. With equal persuasiveness it might be urged that the city of Seattle, which comprises considerably more area than is embraced within a boundary two miles wide and six miles long, could
We find no merit in respondent’s contention and the judgment must be that, under the appellant’s certificate, he is entitled to deliver and receive his freight anywhere within the community, whether incorporated or not, known as Manson; and the respondent, having admitted delivering and receiving freight without a certificate, cannot escape the force of the injunction by any such reason as he has suggested. The order discharging the respondent is reversed, with instructions to the court to proceed to enforce the injunction.
Concurrence Opinion
(concurring) — -I concur in the result but do not concur in the reasoning in paragraphs (c) and (d) of the opinion.