Robertson v. Department of Public Works

Blake, J. Pursuant to chapter 166, Laws of 1933, p. 616, § 4 (Rem. 1934 Sup., § 6381-4 [P. C. § 234-13d]), plaintiff applied to the department of public works *134 for a permit to operate as a contract hauler on the Pacific highway between Portland and Seattle, and on the Olympic highway between Olympia and Aberdeen. After hearing had, the department entered an order which, in effect, denied the application to operate between Olympia and Aberdeen. Plaintiff petitioned the superior court of Thurston county for a writ of review. On the record, the superior court entered judgment affirming the order of the department of public works. Plaintiff appeals. The pertinent facts are as follows: At all times herein mentioned, appellant was a resident of Portland, Oregon, where he operated a storage and transfer business. For some four years before the effective date of chapter 166, Laws of 1933, p. 613, he had operated as a contract hauler on certain highways of this state. His contracts were with some half-dozen firms, or companies, among’ which was Sears, Roebuck & Company. His contract with the latter called for the transportation of goods, wares and merchandise between Seattle and Portland, Seattle and Chehalis, Seattle and Aberdeen, Portland and Chehalis, and Portland and Aberdeen. None of his other contracts called for any haul to or from Aberdeen. The Sears, Roebuck store at- Aberdeen was almost wholly stocked from the Seattle house, although it does appear that, in June, 1933, eighty-three pounds of merchandise was shipped from Portland to Aberdeen. During the same period, there was an average of three trips a week from Seattle to Aberdeen, with an average load of approximately three tons. There was no back haul from Aberdeen. For some time prior to making his application, appellant had sublet the haul to Aberdeen. Appellant testified that, if the permit were granted, he intended to put on a truck of his own between Olympia and Aberdeen, to which he *135 would transfer the goods consigned to Aberdeen from Seattle or Portland. Thus, the empty truck would return from Aberdeen only to Olympia. Appellant contends that, under these facts (his application having in all things conformed to the requirements of chap. 166, Laws 1933, p. 616, § 4, Rem. 1934 Sup., §6381-4 [P. O. §234-13d]), he was entitled to a permit as a matter of right. We know of no inherent right in one to the use of the highways for commercial purposes. The highways are primarily for the use of the public, and in the interest of the public the state may prohibit or regulate, in any way it sees fit, the use of the highways for gain. Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257; Stephenson v. Binford, 287 U. S. 251, 53 S. Ct. 181, 87 A. L. R. 721. In the latter case, it is said: “It is well established law that the highways of the state are public property; that their primary and preferred use is for private purposes; and that their use for purposes of gain is special and extraordinary, which, generally at least, the legislature may prohibit or condition as it sees fit.” The power of the state is limited only in that it cannot unreasonably burden interstate commerce under the guise of exercise of police power, nor discriminate against users in the same class. Bradley v. Public Utilities Commission, 289 U. S. 92, 53 S. Ct. 577, 85 A. L. R. 1131. In that case, it is said: “The Commerce Clause is not violated by denial of the certificate to the appellant, if upon adequate evidence denial is deemed necessary to promote the public safety. . . . One argument is that the statute discriminates unlawfully against common carriers in favor of shippers who operate their own trucks. In dealing with the problem of safety of the highways, as in other problems of motor transportation, the State may adopt measures which favor vehicles used solely in the business of their owners, as distinguished from *136 those which are operated for hire by carriers who use the highways as their place of business.” Neither do such restrictions or regulations impair the obligation of contracts. Sproles v. Binford, 286 U. S. 374, 52 S. Ct. 581; Stephenson v. Binford, 287 U. S. 251, 53 S. Ct. 181, 87 A. L. R. 721. In the former case, it is said: “Contracts which relate to the use of the highways must be deemed to have been made in contemplation of the regulatory authority of the State.” And in the latter case, the court said: “While freedom of contract is the general rule, it is nevertheless not absolute but subject to a great variety of legitimate restraints, among which are such as are required for the safety and welfare of the state and its inhabitants. [Citing cases.] When the exercise of that freedom conflicts with the power and duty of the state to safeguard its property from injury and preserve it for those uses for which it was primarily designed, such freedom may be regulated and limited to the extent which reasonably may be necessary to carry the power and duty into effect.” Nor do such restrictions or regulations infringe the constitutional inhibition to the taking of property without due process of law. Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257; Sproles v. Binford, 286 U. S. 374, 52 S. Ct. 581. So, we at last come to the question of the reasonableness of the order of the department. For: “When the subject lies within the police power of the State, debatable questions as to reasonableness are not for the courts but for the legislature, which is entitled to form its own judgment, and its action within its range of discretion cannot be set aside because compliance is burdensome.” Sproles v. Binford, 286 U. S. 374, 52 S. Ct. 581. *137 While the regulation of motor vehicle transportation for gain is a legislative prerogative, exercise of the function is necessarily an administrative one. It requires expert knowledge and investigation, which neither the legislature nor the courts can acquire at first hand. Cognizant of the necessities of the situation, the legislature, having enacted appropriate laws for regulation of such traffic, has delegated to the department of public works the function of administering the law and regulating traffic within its purview. The authority so conferred upon the department of public works is made subject to review by the courts. But the courts are concerned only with the reasonableness of the orders of the department, when made under authority delegated to it by the legislature. They will not disturb the order unless it is arbitrary or capricious. State ex rel. Great Northern R. Co. v. Public Service Commission, 76 Wash. 625, 137 Pac. 132; State ex rel. United Auto Transportation Co. v. Department of Public Works, 129 Wash. 5, 223 Pac. 1048. In the former case, the court said: “Inquiries of this nature depend altogether upon expert evidence and, we might add, expert findings, and the state has conferred the power upon the commission to determine the merits of the controversy, and its findings should not be disturbed unless they show evidence of arbitrariness and disregard of the material rights of the parties to the controversy. Such .decisions are peculiarly within the province of the commission to make, and ‘its findings are fortified by presumptions of truth due to the judgments of a tribunal appointed by law and informed by experience.’ Interstate Commerce Commission v. Chicago, R. I. & P. R. Co., 218 U. S. 88.” Now, considering the evidence as we have narrated it in the light of the rules of law to which we have ad *138 verted, we think it is clear that the order of the department does not impair the obligation of appellant’s contract nor deprive appellant of his property without due process of law. Likewise, it is clear that the order, being an exercise of the police power, does not impinge the commerce clause of the constitution of the United States. The character of interstate transportation shown under the Sears, Roebuck & Company contract was not such as would economically warrant the maintenance of trucking service between Portland and Aberdeen. Were the application for a permit before the department for that service alone, it would be fully justified in denying the application in the interest of public safety. For it cannot be denied that, for every additional truck permitted on the highways, there is an added hazard to the traveling public. •Was the order arbitrary or capricious under the facts.shown? We think not. It will be recalled that appellant, for some time prior to making’ application for the permit, had not himself done the hauling from Seattle to Aberdeen. He proposed, however, to put special equipment on between Olympia and Aberdeen, and transfer the load from Seattle at the former place. There was no back haul from Aberdeen. The department concluded from these facts that, present transportation facilities between Seattle and Aberdeen, and Olympia and Aberdeen, being adequate for all purposes, the granting of a permit to appellant would add an additional and unnecessary burden on the highway, with consequent increase in hazard to the traveling public. It is a conclusion about which reasonable minds might very well differ —a debatable question, the decision of which must be left to the legislature and those delegated by it to determine such questions. We do think, however, that the conclusion is grounded in substantial reason *139 —not fanciful, capricious or arbitrary. Judgment affirmed. Main, Mitchell, G-eraghty, Millard, and Steinert, JJ., concur.