State Ex Rel. Puget Sound Navigation Co. v. Department of Public Works

*445 Parker, J. — This is an appeal to this court in behalf of the Puget Sound Navigation Company and its associate, the Sound Perry Lines, Inc., relators in the superior court, from a judgment of that court affirming an order and decision of the department of public works granting to the Ballard-Ludlow Perry Company and its associate, the Port Ludlow-Kingston Transportation Company, a certificate of public convenience and necessity, authorizing them to maintain for public use a ferry across Puget Sound between Seattle and Port Ludlow. The interests of the former in this controversy are in common. We shall hereafter refer to them as appellants. The interests of the latter in this controversy are in common. We shall hereafter refer to them as respondents. . Appellants seek reversal of the order and decision of the department and reversal of the judgment of the superior court affirming the order and decision of the department, upon the theory that the granting of the certificate of public convenience and necessity asked for by respondents is, in effect, the granting of a certificate of public convenience and necessity to maintain and operate a ferry between districts already served under an existing certificate of public convenience and necessity held by them, under which they operate a ferry service between Edmonds, a point some sixteen miles north of the business center of Seattle, and Port Ludlow; and is also the granting of a certificate not required by public convenience and necessity. Since prior to January, 1929, respondents have had such interest in common in a good faith certificate of public convenience and necessity authorizing them to maintain a steamboat freight and passenger service between a landing near the central business district of Seattle and Port Ludlow by way of the intermediate points of Kingston, Eglon and Hansville, that we may, *446 for present purposes, regard them as owners in common of that certificate. That steamboat service has, since sometime prior to the enactment of chapter 248, Laws of 1927, p. 382, our steamboat certificate law, been maintained by them or by their predecessor in interest. In January, 1929, respondents applied to the department of public works for amendment of their certificate so as to authorize them to include in their service ferry service between Seattle and Port Ludlow, contemplating making the Seattle landing of that service at that portion of Seattle known as Ballard, some six miles northwesterly from the central business district of Seattle. Since prior to January, 1929, appellants have had such interest in common in a good faith certificate of public convenience and necessity authorizing them to maintain and operate a ferry service between Edmonds and Port Ludlow, that we may, for present purposes, regard them as owners of that certificate. That service has been maintained by them, or one of them, since prior to the enactment of chapter 248, Laws of 1927, p. 382, our steamboat certificate law. Appellants filed with the department their protest against the granting of respondents’ application for an amended certificate; the ground of the protest being, in substance, that appellants were already serving under a certificate of public convenience and necessity territory which included Seattle with adequate ferry service to and from Port Ludlow, by the maintenance of their ferry service between Edmonds and Port Lud-low, Edmonds being some sixteen miles north of the central business district of Seattle and connected therewith by good paved highways. The application and protest came on regularly for hearing before the department, at which a large *447 amount of evidence was introduced touching the question of respondents’ right to such amended certificate as an expansion of the service already rendered hy them; the question of there being a required public convenience and necessity for such additional service; and the question of whether or not Seattle, including Ballard, is within the territory served by appellants’ ferry, in the sense that the granting of the amended certificate, as asked for by respondents, would unlawfully invade that territory as territory already served by appellants’ ferry. Following that hearing, the department made findings, reciting, in part, as follows: “The application to amend the certificate so that the additional ferry service may be authorized is based on good faith operation on and prior to January 15, 1927, and on public convenience and necessity for the service proposed. No new route is to be established but rather an enlarged service to be given. “The department is of the opinion that the application to amend Certificate No. 14 to authorize ferry service between Seattle and Port Ludlow should be granted. . . . “The department is of the further opinion that public convenience and necessity require the ferry service between Port Ludlow and Seattle proposed by the applicant, . . . ” and rendered its order and decision, in part, as follows: “It is Further. Ordered That the application for amendment herein be granted and said S. B. C. Certificate No. 14 amended to authorize ferry service between Seattle and Port Ludlow, Washington, in addition to the service now rendered.” The department did not make any specific finding as to whether or not Seattle was territory already served by appellants’ ferry; evidently proceeding upon the theory that respondents had the right to have their *448 certificate amended as asked for, because of the nature of their service since prior to the enactment of chapter 248, Laws of 1927, p. 382, above noticed; that is, because such service had been in a substantial measure ferry service. Appellants thereupon, by appropriate review proceedings, brought that order and decision of the department into the superior court seeking review and reversal thereof. Upon the hearing accordingly had in the superior court upon the record made before the department, including the voluminous evidence there introduced, that court reversed and set aside the order and decision of the department, doing so, as evidenced by its memorandum opinion, preliminary to the rendering of formal judgment, upon the theory that Seattle, including Ballard, was territory already served by appellants’ ferry; though, as above noticed, that was not a question upon which the department had made any finding. Thereupon respondents appealed from that judgment to this court, and thereafter in due course this court rendered its decision, reported in 156 Wash. 377, 287 Pac. 52, reversing the judgment of the superior court and remanding the cause to that court with directions that it remand the cause to the department “with directions to grant a rehearing on the question of whether the applicant is seeking a certificate for territory already served,” that being a question to be decided in the first instance by the department, and a question which it had not decided in this controversy and which, therefore, the superior court was not authorized to decide upon review of the department’s order and decision. Thereafter, the matter, having been remanded by the superior court to the department as directed by this court, came on for rehearing before the depart *449 ment. All of the evidence introduced upon the prior hearing was considered by the department, together with much additional evidence then introduced, more particularly touching the question of Seattle being territory already served by appellants’ ferry. Following that hearing, the department made findings in effect adopting its prior finding upon the question of required public convenience and necessity calling for the proposed new ferry service, and further found, in part, as follows: “Protestant’s chief contention is that the territory proposed to be served is now being served by Ed-monds-Ludlow ferry ... “The department is of the opinion that the Ed-monds-Ludlow ferry is not furnishing service between Seattle or Ballard and Ludlow within the meaning of the statute. Edmonds is an incorporated city located in Snohomish county, sixteen miles north of Seattle and about the same distance south of Everett. Although the record is silent, the department of its own knowledge is aware that Edmonds has its own business and commercial life as independent of Seattle as is Everett. It is in no sense a part of the Seattle district unless all of the area between Everett and Tacoma can be called the Seattle district. . . . “Seattle has a population of more than 300,000, a majority of which live north of Lake Union and the Canal. ■ More than 50,000 people live in the Ballard district bounded on the south by the Canal and on the east by Phinney Ridge. The Ballard district, although included within the municipal limits of Seattle, is ,in many ways a separate community. It has its own banks, retail stores, jobbing and wholesale houses, cold storage plants, manufacturing and industrial establishments, commercial club and other activities. The Port Commission of Seattle has included as a part of its comprehensive scheme the construction and development of ferry terminals at Ballard. Ballard has a natural harbor, protected from the prevailing winter winds and reached by streets on a water grade. *450 • “The Olympic peninsula has a population of nearly 30,000, . . Following these findings and others of much greater detail, the department rendered its order and decision -as follows: ■ “Wherefore it is Ordered That application for amendment herein be granted and that Certificate S. B. C. No. 14 standing in the name of the Ballard-Lud-low Ferry Company be amended to authorize ferry service between Ballard and Port Ludlow, Washington, in addition to the service now rendered.” Thereafter, appellants, by appropriate review proceedings, brought that order and decision of the department into the superior court seeldng review and reversal thereof. In due course, following a hearing in that court upon the record of the controversy made in the department, including all of the evidence there introduced upon both hearings, the superior court rendered its judgment affirming the order and decision of. the department granting to respondents a certificate of public convenience and necessity authorizing them to establish and maintain the proposed steamboat ferry service between Ballard and Port Ludlow. From that judgment, appellants have appealed to this court seeking reversal thereof, and, in turn, reversal of the order and decision of the department. This is the appeal with which we are here directly concerned. At the risk of seeming to unnecessarily repeat, we here further outline the geography of this controversy. The Olympic Peninsula, with a population of some 30,000 inhabitants, lies to the west of Puget Sound. Port Ludlow on the west shore of Puget Sound is the main gateway port of the Olympic Peninsula from the east side of Puget Sound. Indeed, it is the only port on the extreme easterly edge of the Olympic Peninsula having direct boat service with the easterly *451 shore of Puget Sound at Edmonds or Seattle, or in their vicinity. Seattle, with a population of some 350,000 inhabitants, is situated on the east shore of Puget Sound. Ballard, a part of Seattle, with a population of some 50,000 inhabitants, is situated on the east shore of Puget Sound, some six miles in a northerly and westerly direction from the main business district of Seattle. Edmonds is situated on the east shore of Puget Sound, some sixteen miles north of the main business district of Seattle and some ten miles north of Ballard. The territory immediately surrounding Seattle adds many thousands of inhabitants to that metropolitan center. The route of appellants’ ferry between Edmonds and Port Ludlow runs in a general northwesterly and southeasterly direction, and is approximately fourteen miles long. The route of respondents’ proposed ferry between Ballard and Port Ludlow will run not so nearly in a northwesterly and southeasterly direction, and will be approximately twenty-two miles long; this because of Ballard being some ten miles south of Ed-monds. These two ferry routes will be the only direct ferry routes between Port Ludlow and the territory in the vicinity of Edmonds and Seattle on the east shore of Puget Sound. Counsel for appellants invoke the provision of chapter 248, Laws of 1927, p. 382, Bern. 1927 Sup., § 10361-1, our steamboat certificate law, reading as follows : “ . . . the department shall not have power to grant a certificate to operate between districts and/or into any territory already served by an existing certificate-holder, . . . ” and argue that the facts of. this case show that appellants’ existing ferry between Edmonds and Port *452 Ludlow already serves the whole of the territory of both Edmonds and Seattle and their vicinities. It is true' that appellants’ ferry does serve the territory of Seattle and its vicinity as well as that of Ed-monds and its vicinity, but appellants’ ferry also in a sense serves a vastly greater territory than that in the vicinity of Seattle and Edmonds. We are of the opinion that it will not do to carry this argument to the extent sought by counsel for appellants. Because a large, extensive and populous territory is being' served by a single ferry, such ferry does not thereby necessarily have a-monopoly upon the whole of such territory to the extent that it must be held to be serving that territory to the exclusion of the establishing of some new ferry service at some other place therein advantageous to the public. The view of the law which we regard as applicable to this and similar controversies was well stated by Judge French, speaking for the court, in Puget Sound Nav. Co. v. Department of Public Works, 152 Wash. 417, 278 Pac. 189, as follows: “The question, what is territory already served, is a question of fact. Before that fact can be determined, it requires consideration of economic conditions, ofttimes involving expert testimony; a consideration of the kinds, means and methods of travel; the question of population warranting additional facilities for transportation, or the possibilities of the additional means of transportation increasing the population ?> We do not overlook the fact, apparently shown by the evidence, that some ninety per cent of the ferry traffic over appellants’ ferry between Edmonds and Port Ludlow has been and is traffic between Seattle and Port Ludlow. By ferry traffic we mean, of course, wheeled vehicle traffic capable of being driven on and off the ferry. This condition, we think, is far from con- *453 elusive that Seattle, including Ballard, is territory already served by appellants’ ferry, in the sense that that territory should not be directly served by respondents’ proposed service between Ballard and Port Lud-low. Our decision in North Bend Stage Line v. Department of Public Works, 162 Wash. 46, 297 Pac. 780, and our other decisions therein noticed, lend support to this conclusion. We conclude that the order and decision of the department last rendered by it, and the judgment of the superior court affirming that order and decision, must be affirmed. It is so ordered. Main, Holcomb, Beals, Beeler, and Herman, JJ., concur.