Golden Gate Ferry Co. v. Railroad Commission

LANGDON, J. This is an application for a writ of review. The petitioner, The Golden Gate Ferry Company, alleges that it was and now is engaged in the business of operating a public ferry for which tolls are charged for the transportation of passengers and self-propelled and other vehicles on, over, and across the waters of the San Francisco Bay; that it is the owner and in the possession of a franchise *307 granted by the board of supervisors of the city and county of San Francisco authorizing the establishment, operation, and maintenance of a public ferry between points in the said city and county of San Francisco and the city of Alameda, county of Alameda; that on the twenty-sixth day of March, 1926, petitioner filed its application with the Railroad Commission of the state of California, pursuant to the provisions of section 50d of the Public Utilities Act (Stats. 1911 [Ex. Sess.], p. 18, and amendments thereto), requesting said Commission to issue and grant to petitioner a certificate 'of public convenience and necessity to operate vessels between the city of San Francisco and the city of Alameda; that a hearing was had thereon by said Commission, but no decision or order has as yet been made or rendered therein; that on or about September 3, 1926, the Southern Pacific Company, a railroad corporation, commenced the operation of a public vehicular ferry between a point within the city of San Francisco and a point within the city of Alameda; that in commencing said vehicular ferry service between said points, the Southern Pacific Company for the first time put into operation between said cities an entirely new, different, and distinct type of vessel, namely, that type of vessel which is designated as a vehicular ferry; that vessels of such construction and type had never theretofore been operated by said Southern Pacific Company between any points in San Francisco and Alameda; that on July 15, 1926, and prior to its operation of said vehicular ferry between San Francisco and Alameda the Southern Pacific Company filed with the respondent Commission an amendment to its tariff schedules naming rates for vehicular ferry service between, among other points, San Francisco and the Alameda pier; that said amendment was the first filing by the Southern Pacific Company of any rate for vehicular ferry service between any point in San Francisco and any point in Alameda; that prior to said amendment the Southern Pacific Company had no rate on file with the respondent Commission or any tariff applicable to the transportation of vehicles between any point in San Francisco and said Alameda pier, or any other point in Alameda; that said Southern Pacific Company has never received or petitioned for or in any manner sought from the respondent Commission a certificate of public convenience and necessity to operate vessels in *308 vehicular ferry service between San Francisco and the Alameda pier or any vehicular ferry service between the city of San Francisco and the city of Alameda; that there has never issued to the Southern Pacific Company nor to any of its lessees or subsidiaries any such certificate of public convenience and necessity as required by the provisions of section 50d of the Public Utilities Act and said Southern Pacific Company is without lawful rig’ht, authority, or privilege to operate said or any vessels for automobiles or other vehicular ferry service between the city of San Francisco and the said city of Alameda; that the Southern Pacific Company had not for a period of thirty-two years prior to September 3, 1926, engaged in the transportation of vehicles between any point in the city of San Francisco and the city of Alameda; that the respondent Commission, of its own motion, instituted a proceeding having for its purpose an investigation into the construction of facilities and the rendering of a vehicular ferry service by the Southern Pacific Company between said two points without first having obtained a certificate of public convenience and necessity; that the respondent Commission permitted the petitioner herein to intervene in said proceeding as an interested party; that petitioner has been and now is an interested party in said proceeding and in the action, determination, and decision therein; that the respondent Commission on the seventeenth day of December, made, rendered, and filed its opinion and order, concurred in by a majority of its members, declaring, in effect, that the Southern Pacific Company was and is not required to secure a certificate of public convenience and necessity under the provisions of section 50d of the Public Utilities Act authorizing it to inaugurate a vehicular ferry service between the city of San Francisco and the Alameda pier; that thereafter and.within twenty days from the making of said order and decision the petitioner herein filed with the respondent Commission its petition for rehearing, which said petition was denied on January 6, 1927; that the majority opinion and order of the respondent Commission declaring that the Southern Pacific Company was and is not required to secure a certificate of public convenience and necessity under section 50d of the Public Utilities Act for the operation of a vehicular ferry service between the city of San Francisco and the city of Alameda, is illegal, void, and *309 in excess of the jurisdiction of the respondent Commission. Wherefore, the petitioner prays that this court enter its decree and judgment, annulling and setting aside the majority opinion and order of the respondent Commission referred to above. The sole question presented in this proceeding for a review of said order revolves about the interpretation to be given to section 50d of the Public Utilities Act as amended in 1923 (Stats. 1923, pp. 834, 836). The section reads: “No corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, shall hereafter operate or cause to be operated, any vessel between points exclusively on the inland waters of this state, without first having obtained from the railroad commission a certificate declaring that present or future public convenience and necessity require or will require, such operation, but no such certificate shall be required of any corporation or person which is actually operating vessels in good faith, at the time this act becomes effective, between points exclusively on the inland waters of this state under tariffs and schedules of such corporation or persons, lawfully on file with the railroad commission. ” It is contended by the Southern Pacific Company that its operation is and has been such as to bring it within the exemption contained in section 50d; that is to say, it is urged by said company that on August 16, 1923, the effective date of section 50d of the Public Utilities Act, it was operating vessels in good faith between points exclusively on the inland waters of this state and more particularly between the city and county of San Francisco and the Alameda pier, under tariffs and schedules lawfully on file with the respondent Commission. In view of the existence of these facts, it is urged by the Southern Pacific Company that it may properly operate and maintain, by virtue of the exemption provision found in section 50d, a public vehicular ferry service between said points without first acquiring from the respondent Commission a certificate of public convenience and necessity. Petitioner contends, on the other hand, that the operation of a vehicular ferry service by the Southern Pacific Company between San Francisco and the Alameda pier does not fall within the exemption provided for in said section 50d, *310 for that section exempted any existing operator from the necessity of obtaining a certificate of public convenience and necessity for any operations being conducted in good faith on that date, or for the exercise of any rights being exercised on that date, but did not exempt any operator from securing a certificate of public convenience and necessity for the commencement of any new operations not theretofore being conducted or for the exercise of any rights not theretofore being exercised.” It is undisputed that for a period in excess of thirty-two years preceding September 3, 1926, Southern Pacific Company operated no vessels between any point in Alameda and any point in the city and county of San Francisco, except for the transportation of passengers carried on its trains. Prior to 1894 said company operated vessels which were used to transport vehicles between its Alameda pier and a point in San Francisco. In December, 1894, however, the plank road along the Alameda pier was torn up and since that time and until a new road was built in 1926 no service was offered to the public by Southern Pacific Company for the transportation of vehicles between any point in Alameda and any point in San Francisco. It is apparent, therefore, that whatever service the Southern Pacific Company or its predecessors may heretofore have offered to the public in the way of vehicular transportation between Alameda and San Francisco was abandoned. It would seem to follow that after such service was abandoned, the obligation to render it ceased and the right of the public to insist upon it was terminated. A similar situation was presented in the case of Atchison, Topeka & Santa Fe Railway Company v. Railroad Commission, 173 Cal. 577 [160 Pac. 828], There railroad service between two points had been discontinued for about twenty years. A complaint was filed with the Railroad Commission to require the reestablishment of that service. The Commission made an order requiring the railroad company to re-establish the service. Upon appeal, it was held that the Commission acted beyond its jurisdiction, the following language being used: “Nor is the fact that a railroad line had once existed between Fallbrook and Temecula a factor of any moment in the present inquiry. No question is made of the authority *311 of the Railroad Commission to compel a railroad company or other public utility to restore a service which it has been furnishing. Here, however, the line between Fallbrook and Temecula had been destroyed for about twenty years before the action of the Commission was invoked, and, indeed, before the enactment of the law upon which the Commission relies for its authority to act. It is expressly found that ‘that portion of the line was left abandoned and service discontinued. It has remained abandoned ever since.’ In view of this fact, it cannot be doubted that any obligation of the predecessor of the Santa Fe Company to maintain and operate the line from Fallbrook to Temecula had long since ceased (Public Service Com. v. Philadelphia etc. Ry. Co., 122 Md. 438 [89 Atl. 726]), and that no such obligation ever rested upon the Santa Fe Company itself. The duty to maintain the line was dependent upon the right to maintain it, and this right was lost by abandonment (Home Real Estate Co. v. Los Angeles Pac. Co., 163 Cal. 710 [126 Pac. 972]), without regard to the question whether it had been forfeited under the provisions of section 468 of the Civil Code. The case must, therefore, stand precisely as it woidd if there had never been any connection between these two points. ’ ’ Likewise, in the instant case, it would appear that vehicular service between the points in question having been abandoned by Southern Pacific Company and its predecessors there was no obligation upon the part of the company to render it and no right in the public to insist upon receiving it. Nor can it be said that a certificate of public convenience and necessity was unnecessary to inaugurate this service because the Southern Pacific Company was “actually operating vessels in good faith under tariffs and schedules lawfully on file with the Railroad Commission,” within the meaning of the Public Utilities Act. The briefs on file herein present three possible interpretations of the language just quoted: one, a legislative purpose to exempt a corporation operating vessels in any type of service on the inland waters of this state from securing a certificate; two, a legislative purpose to exempt a corporation that is operating a similar service to the one sought to be inaugurated from securing such a certificate, and, three, a legislative purpose *312 to exempt a corporation that is operating, at the time the act becomes effective, a service which is later to be continued, from securing such certificate. We are of the opinion that the third alternative is the one which was intended by the legislature, i. e., that a corporation is exempted from obtaining the certificate if it was, at the effective date of the act, actually operating a service in "all respects substantially the same as the service to be rendered after the act became effective. Since it is apparent that the section of the act under consideration is not clear and definite in expressing any of the above suggested alternatives, it becomes the duty of this court to construe the same with reference to the purposes sought to be served and the public policy underlying the legislation. An examination of the entire act under consideration evinces a determined purpose to give to the Railroad Commission power to regulate transportation on the inland waters of the state by granting or refusing certificates of public convenience and necessity, and a construction of the act, such as contended for by respondents, so as to exempt any person or corporation from applying for such a certificate if he or it has been operating any type of vessel in any type of service before the act became operative, would leave with the Railroad Commission but a semblance of power, and to construe the act so as to exempt a corporation from securing a certificate to carry freight if it had previously carried freight over a different route, but one comparable in some of its features to the new route sought, would be to give an elasticity to the language and the action to be taken under it which would result in confusion and litigation and impoteney on the part of the Commission. The safe, definite rule, and the one supported by the reason and purpose of the Public Utilities Act, would seem to us to be to construe the language, “operating vessels in good faith,” to mean operating them in good faith in the essential and inherent features of the service sought to be continued after the ' effective date of the act. It seems apparent from the admitted facts that the Southern Pacific Company was not operating such a service at the date mentioned. A different type of vessel is to be used by the Southern Pacific Company from that used at the date of the act; a different route is to be taken, and a different class of service rendered. *313 The legislature, in 1917, enacted a statute regulating transportation by automobile stage (Stats. 1917, p. 330, as amended in 1919 [Stats. 1919, p. 457]), and therein relieved from the necessity of obtaining a certificate of public convenience and necessity companies actually operating in good faith at that time. The exemption portion of the statute was construed by this court in the case of Motor Transit Co. v. Railroad Commission, 189 Cal. 573 [160 Pac. 828], the court saying: “The purpose in so exempting such companies was to refrain from interfering with the operations as then carried or—in other words, to confirm in these operators the rights they were at the time exercising. But such exemption was, obviously, only to the extent of the operations then conducted. To hold that by the operation of a through line on that date petitioners were given a franchise to operate to any extent that they, in their judgment, might see fit, limited solely by the restriction that the operations must be between the same termini and over the same route, would be to materially decrease the power of the Commission over these lines and thus overlook the primary purpose of the enactment, which was to give to the Commission, in the interest of the public, the fullest power possible to regulate the operation of auto stage companies.” We see no essential legal distinction between the portion of the statute considered in the last cited case and the portion of the statute under consideration here. Nor can we agree with respondents that the filing of a tariff amendment to the creek route vehicular tariff is the addition of a commodity to the Alameda passenger tariff. The tariff which was amended covered no service whatever between any point in the city of San Francisco and any point in the city of Alameda. At the time of the tariff amendment the Southern Pacific Company was engaged in the operation of vessels between Alameda pier and the Ferry Building in San Francisco for the transportation only of passengers transported over its railroad. It had no tariff on file for the transportation of any freight of any kind whatever. The operation of a vehicular ferry has no connection with the operation of a railroad service. It is in no way an adjunct of the railroad operation. A vehicular service could just as well be rendered by a corporation which *314 had no rights whatever to operate a railroad. The Southern Pacific Company, in another action, successfully maintained this contention before this court. (Southern Pac. Co. v. Richardson, 181 Cal. 280 [184 Pac. 3].) The order of the respondent Bailroad Commission filed herein is annulled. Bichards, J., Seawell, J., Curtis, J., Waste, C. J., and Shenk, J., concurred.