Robertson v. Department of Public Works, 180 Wash. 133, 39 P.2d 596 (1934).

           ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.      133
 Dec. 1934               Opinion Per BLAKE, J.

           [No. 25098. En Banc. December 21, 1934.]
      GUS ROBERTSON, Appellant, v. THE DEPARTMENT OF
           PUBLIC WORKS et al., Respondents. 1

[1] CARRIERS (1, 3-4) - CONSTITUTIONAL LAW (70-1, 126) - CONTRACT
HAULERS - REGULATION BY DEPARTMENT - REVIEW - OBLIGATION OF
CONTRACT - DUE PROCESS. There being no inherent right to the
use of highways for commercial purposes, the power of the
state to prohibit or regulate such use is limited only in
that it cannot unreasonably burden interstate commerce or
discriminate against users of the same class; and reasonable
regulations for the safety and welfare of the public are not
unconstitutional as impairing the obligation of contracts or
as taking property without due process of law.

[2] SAME (1, 3-4). The legislature having exercised its function
of regulating motor vehicle transportation for gain and
delegated the administration of the law to the department of
public works, with right of appeal to the courts, the
department's findings will not be disturbed unless they are
arbitrary and capricious; and it is not unreasonable or
arbitrary to deny a contract hauler a permit, authorized
under Item. 1934 Sup., SS 6381-4, for a trucking service that
was not economically warranted and which placed an additional
burden on a highway where the present service was adequate.

Appeal from a judgment of the superior court for
Thurston county, Wright, J., entered February 14,
1934, affirming an order of the department of public
works denying an application for a permit to operate
as a contract hauler. Affirmed.

Yantis & Brodie and John M. Hickson, for appellant.

The Attorney General and Don Cary Smith, Assistant,
for respondent.

BLAKE

BEALS, C.J., TOLMAN, and HOLCOMB, JJ., dissent.

BLAKE, J. - Pursuant to chapter 166, Laws of 1933,
p. 616, SS 4 (Rem. 1934 Sup., SS 6381-4 [P.C. SS 234-13d]),
plaintiff applied to the department of public works


1 Reported in 39 P.2d 596.

 134    ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.
                    Opinion Per BLAKE, J.           180 Wash.

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

           ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.      135
 Dec. 1934               Opinion Per BLAKE, J.

would transfer the goods consigned to Aberdeen from
Seattle or Portland. Thus, the empty truck would
return from Aberdeen only to Olympia.

[1] Appellant contends that, under these facts
(his application having in all things conformed to the
requirements of chap. 166, Laws 1933, p. 616, SS 4,
Rem. 1934 Sup., SS 6381-4 [P.C. SS 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    ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.
                    Opinion Per BLAKE, J.           180 Wash.

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.

[2] 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.

           ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.      137
 Dec. 1934               Opinion Per BLAKE, J.

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

 138    ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.
                    Opinion Per BLAKE, J.           180 Wash.

adverted, 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 -

           ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.      139
 Dec. 1934         Dissenting Opinion Per TOLMAN, J.

not fanciful, capricious or arbitrary.

Judgment affirmed.

MAIN, MITCHELL, GERAGHTY, MILLARD, and STEINERT,
JJ., concur.

TOLMAN, J. (dissenting) - I am not particularly
concerned about the rights of haulers by contract or
otherwise, but I am deeply interested in the rights of
the public to use the public highways freely for all
lawful purposes.

The fundamental error of the majority, as I see it,
consists of the assumption that the appellant was a
common carrier or was doing a business affected with
a public interest, and therefore his activities may be
forbidden absolutely or regulated specially. This
supposed foundation has no existence whatever. A
permit was issued to the appellant to continue every
activity in which he served two or more firms or
persons, and his application was denied only as to the
haul between Olympia and Aberdeen in which he
served Sears, Roebuck & Company alone.

The fully established and wholly admitted fact
that the appellant was serving a single employer,
which the majority ignores and the force of which
apparently is not appreciated, is absolutely vital,
and must be held constantly in mind. Everything
here said is predicated upon that fact and no other.

One other fact has some incidental bearing and
should also be stated, and that is that there is not a
word in the evidence or the findings made by the
department as to the nature and condition of the traffic
on the highway between Olympia and Aberdeen. No
presumption may be indulged in to the effect that the
highway is in any wise congested, overburdened or
unsafe. There being no evidence or finding to the

 140    ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.
           Dissenting Opinion Per TOLMAN, J.      180 Wash.

contrary, the presumption obtains that the highway
is safe and sufficient for all lawful operations.

Chapter 166, Laws of 1933, p. 613, as it affects
contract haulers, is somewhat involved and elaborate
in its terms, but for present purposes the following
resume will, perhaps, be sufficient.

Section one (Rem. 1933 Sup., SS 6381-1), in part,
reads:

"The business of operating as a motor carrier of
property for hire along the highways of this state is
declared to be a business affected with the public
interest. The rapid increase of motor carrier freight
traffic, and the fact that under existing law many motor
trucks are not effectively regulated, have increased the
dangers and hazards on public highways and make it
imperative that more stringent 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 of
traffic on highways may be minimized; and that the
use of the highways for the transportation of property
for hire may be restricted to the extent required by the
necessity of the general public. Wherefore, the
legislature in the interest of the public safety and for the
conservation of the highways and the preservation of
the use thereof for the public, provides as follows:"

Then follow certain definitions, among which is:

"f. The term 'contract hauler' means every person
owning, controlling, operating or managing any motor
vehicle used in the business of transporting property
for compensation, other than as a certified operator,
over any public highway between fixed termini or over
a regular route, not operating exclusively within the
incorporated limits of any city or town:"

Section 3 (Rem. 1934 Sup., SS 6381-3 [P.C. SS 234-13c])
vests in the department power and authority
to regulate contract haulers, to supervise and fix
their rates, etc., and require the filing of reports, the
purpose apparently being to give the department

           ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.      141
 Dec. 1934         Dissenting Opinion Per TOLMAN, J.

power to intervene between the shipper and his
hauler and say what shall be a fair rate and what
shall be proper rules and regulations affecting the
service.

Section 4 forbids contract hauling, except under
permit issued by the department, provides that the
department may issue permits when the applicant has
complied with the conditions,

". . . or for good cause shown to refuse to issue
same, or to issue it for the partial exercise only of said
privilege sought, and may attach to the exercise of the
rights granted by said permit such terms and conditions
as, in its judgment, will promote safety upon
the highways and conservation of their use in the public
interest. The department shall deny any application
for a permit when the type of vehicle to be used is an
unsafe vehicle to be operated upon the public highways,
and when it is not shown that the applicant has complied
with the provisions of this act and with the existing
motor vehicle laws of the state of Washington."
Rem. 1934 Sup., SS 6381-4 [P.C. SS 234-13d].

Section 5 (Rem. 1933 Sup., SS 6381-5), provides that
liability and property damage insurance shall be
provided by the operator. Section 6 (Rem. 1934 Sup.,
SS 6381-6 [P.C. SS 234-13f]) is largely repetition of
matters heretofore mentioned.

Section 7 (Rem. 1934 Sup., SS 6381-7 [P.C.
SS 234-13g] ) gives the department power to prescribe
the form of applications and requires that a fee shall
accompany each application. Section 8 (Rem. 1934
Sup., SS 6381-8 [P.C. SS 234-13h]) forbids the assignment
of any permit.

Section 9 provides that the department may:

". . . for good cause suspend or revoke such
permit upon at least ten days' notice to the grantee
and an opportunity to be heard." Rem. 1934 Sup.,
SS 6381-9 [P.C. SS 234-13i].

 142    ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.
           Dissenting Opinion Per TOLMAN, J.      180 Wash.

Section 10 (Rem. 1934 Sup., SS 6381-10 [P.C.
SS 234-13j]) requires copies of all contracts to be filed
with the department. Section 11 (Rem. 1934 Sup.,
SS 6381-11 [P.C. SS 234-13k]) fixes the hours of duty
of drivers or operators. Section 12 (Rem. 1934 Sup.,
SS 6381-12 [P.C. SS 234-131]) provides for complaints,
hearings and review.

There are numerous other provisions contained in
the act not here brought in question, and it is not
necessary to further analyze it.

The purpose of this legislative act, as shown by the
portions quoted, seems rather clearly to be to place
upon contract haulers and haulers for hire some of
the burdens generally recognized as applicable to
common carriers, but from which private carriers
have heretofore been largely exempt.

The act was recently passed upon by a Federal
court, which sustained its general provisions. The
question of whether or not a contract hauler is, under
the act, a common carrier, does not appear to have
been there directly decided, perhaps because the act
does not require the operator to devote his property
to the service of the public. Deppman v. Murray,
5 Fed. Sup. 661. That decision is not binding upon
us, and I express no opinion upon its merits.

We have also passed upon some features of the act
in State ex rel. Scott v. Superior Court,
173 Wash. 547,
24 P.2d 87. Neither of these cases has any
bearing upon our present question.

We have here a very narrow subject. Whether one
who contracts with two or more may so far trench
upon the field occupied by common carriers as to be
subject to all of the terms of the act, I do not now
attempt to decide. As already indicated, so far as the
appellant may serve more than one employer, his
application has been granted, and we are here

           ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.      143
 Dec. 1934         Dissenting Opinion Per TOLMAN, J.

concerned only with the particular service between
Olympia and Aberdeen for a single employer, which
the department has denied him the right to continue
to perform, and with the reason or basis upon which
the denial is founded.

If the definition of a contract hauler, contained in
section one of the act, had been limited to cover only
one who carries the goods or merchandise of several
or many shippers at one and the same time in one and
the same load and over the same route, or if the courts
may construe the statute to have that meaning, then
at least a plausible argument may be advanced to the
effect that the words of the statute which say that
such a business is affected with a public interest, are
intended to and do mean that such a carrier is doing
a business which partakes of the qualities of the
business of a common carrier, so that the legislature might
forbid the use of the public highways for such a purpose.
But we have no such question here, and I make
these suggestions, not as expressing my views or
committing myself for the future, but only in the hope
that they may possibly aid those charged with the
duty of solving these perplexing questions.

Our highways are public highways, and are maintained
for the use of the public without discrimination
or favoritism. The employer is a vitally interested
party, and in regulating the operator, by law or
departmental rule, care must be used to do so in a way
which will not deny the use of the highways for any
legitimate purpose.

A producer, a manufacturer, or a merchant may
drive his own truck (if it be a proper one) over the
highways to obtain or to deliver his materials or
merchandise, subject only to such general rules and
regulations as are applicable to all like traffic, such
as reasonable limitations as to speed, weight of the

 144    ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.
           Dissenting Opinion Per TOLMAN, J.      180 Wash.

vehicle, weight of the load, the character of the vehicle
as it affects the highway itself and as it affects the
safety of others, and all like matters. In the exercise
of the police power, undoubtedly the state may, by
such rules, protect its highways and insure, so far as
possible, the safety of all upon them, but the rules
must be general in their application, so that anyone
and everyone complying therewith may have free use
of the highways, subject only to such police regulations.

What I have just said will, I think, be accepted by
all, and if so, the application of it is as follows:

Sears, Roebuck & Company may operate its own
truck between Olympia and Aberdeen freely each
way, subject only to proper police regulations. It
may hire any employee it may choose to drive that
truck, or it may, at its pleasure, hire a truck and a
driver for the same service under the same conditions.
Whether it pays for the service by the hour,
the day, the month, or by the hundredweight, is
wholly immaterial.

The state may regulate all such operations by general
rules applicable to all like use of the highways,
but it may not arbitrarily forbid or prohibit any such
uses. Here, Sears, Roebuck & Company has hired the
appellant, on terms presumably satisfactory to it, to
operate his own truck in carrying merchandise between
Olympia and Aberdeen. There is no finding,
suggestion or proof that the operation causes any
undue congestion of traffic, or that traffic conditions
are such that this service calls for anything other
than our general traffic regulations which are already
in force.

Appellant, as the employee of Sears, Roebuck &
Company, asks for a permit, complies with the law,
and pays the fee. The department makes no attempt

           ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.      145
 Dec. 1934         Dissenting Opinion Per TOLMAN, J.

to regulate the proposed operations, does not find that
regulation is required, but denies the application
outright, thus denying to the employer the use of the
highways to transport his goods through his hired
employee upon terms mutually satisfactory to them.

This is a direct discrimination, not only against the
appellant, but against his employer, denying the
right to the use of the highways to each on the terms
upon which all others freely use it. We cannot construe
the act as authorizing any such result without
rendering it unconstitutional.

This situation is not affected by the words of the
statute declaring such use of the highways to be affected
with a public interest. In the recent and much
cited case of Nebbia v. People of the State of New
York, 291 U.S. 502, 54 S. Ct. 505, 78 Law Ed. 940, the
Federal supreme court said:

"The phrase 'affected with a public interest' can, in
the nature of things, mean no more than that an industry,
for adequate reason, is subject to control for
the public good."

No private business can exist or be profitable except
through the free use of the highways. To cut off
ingress and egress by public highways would extinguish
all business, and, hence, all businesses use the
highways for profit in the same sense that the shipper
who employs the appellant uses them. Appellant is
but the employee, the agent or the servant of the
shipper, and his use is that of his employer. All such
use is affected with a public interest just so far as all
use of the highways in carrying on private business
is so affected.

But to return to the particular question here
presented, it will not do to say that, because there is no
available back freight, the operation is unnecessary
and needless, or that the shipper can obtain adequate

 146    ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.
           Dissenting Opinion Per TOLMAN, J.      180 Wash.

service from others. The shipper is the sole judge of
what is necessary or needful in his business, and if he
sees advantage in a private contract for hauling, he
has the absolute right to avail himself of that advantage.

Here, the shipper has a private contract already in
effect, and the ruling of the department denies him
the benefits of that contract and forces him to make
some other contract, perhaps at greater cost to himself.
Moreover, if this operator already selected can
be denied the right, then any other operator hereafter
selected may also be denied the right to haul the
shipper's goods, and in the end we might come to a
point where the operator's politics must please the
department before a permit will be issued to him. We
should not uphold a ruling which would lead to such
results.

It is equally idle to attempt to forbid the supposed
inefficiency of an empty return trip. Use of the highways
(unless overcongested) cannot be limited to any
efficiency rule. Much of our traffic is for pleasure
only, and it is not for the state to say what is pleasure
and what is profit, nor to discriminate against the
profit there may be in pleasure or in favor of the
pleasure there may be in profit. No doubt, in the very
nature of things, a large percentage of freighting over
our highways consists of loads but one way. Logging
from the woods to mill or water, building materials
from mill or factory to place of use, and all deliveries
by merchants, wholesale or retail, and many other
operations which suggest themselves, are all familiar
examples. The subject need not be enlarged upon.

Nothing herein said is intended to reflect upon the
right to refuse a permit to a person unfitted to drive
a truck or without a driver's license, or a person who
habitually violates the rules of the road. Matters of

           ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.      147
 Dec. 1934         Dissenting Opinion Per TOLMAN, J.

that sort calling for the exercise of discretion by the
department must be left for discussion when properly
presented.

Notwithstanding the general declaration of policy
as contained in the quoted portion of section one of
the act, I find no language which, in terms, authorizes
or directs the department to refuse a permit on the
ground of the lack of necessity. It was by the
legislature, no doubt, intended and expected that the
general regulations contained would, in and of
themselves, minimize congestion and otherwise tend to
secure the declared objective. Had there been any
purpose to base the right to a permit upon convenience
and necessity, it would have been an easy and simple
thing to have said so, in the direct and often approved
language of the acts relating to common carriers which
were already in effect.

Complete freedom of the highways is so old and
well established a blessing that we have forgotten the
days of the "Robber Barons" and toll roads, and yet,
under an act like this, arbitrarily administered, the
highways may be completely monopolized. If, through
lack of interest, the people submit, then they may look
to see the most sacred of their liberties taken from
them one by one by more or less rapid encroachment.

I come now more directly to the law of the case as
announced by the majority. The appellant was carrying
on a perfectly legitimate business, in which the
state had no right to interfere up to the time chapter
166 took effect. Carlsen v. Cooney,
123 Wash. 441,
212 Pac. 575; Davis & Banker v. Metcalf, 131 Wash. 141,
229 Pac. 2; Big Bend Auto Freight v. Ogers,
148 Wash. 521, 269 Pac. 802.

Chapter 166 does not, by its terms, forbid such
operations, and if it attempts to convert what were
private carriers into common carriers, its fiat cannot

 148    ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.
           Dissenting Opinion Per TOLMAN, J.      180 Wash.

change an operation for a single shipper under a
special contract such as this, into a business affected
with a public interest in any other or different sense
than that in which all traffic on a highway is so affected
with public interest, as we have already attempted to
demonstrate.

The Federal supreme court in Smith v. Cahoon,
283 U.S. 553, 51 S. Ct. 582, said:

"On the face of the statute, the scheme was obviously
one for the supervision and control of those carriers
which, by reason of the nature of their undertaking
or business, were subject to regulation by public
authority in relation to rates and service. No separate
scheme of regulation can be discerned in the terms of
the Act with respect to those considerations of safety
and proper operation affecting the use of highways
which may appropriately relate to private carriers as
well as to common carriers. All carriers within the
Act, whether public or private, are put by the terms of
the statute upon precisely the same footing. All must
obtain certificates of public convenience and necessity
upon like application and conditions. It is true that
the statute does not in express terms demand that a
private carrier shall constitute itself a common carrier,
but the statute purports to subject all the carriers
which are within the terms of its definition to the same
obligations. Such a scheme of regulation of the business
of a private carrier, such as the appellant, is
manifestly beyond the power of the State. See
Michigan Pub. Util. Comm. v. Duke, 266 U.S. 570,
576-578; Frost Trucking Co. v. Railroad Comm., 271
U.S. 583, 592."

See, also, Nebbia v. People of the State of New
York, supra.

I have examined with care the decisions upon which
the majority relies, and find none which express a
rule of law contrary to that which I have here tried
to enunciate. Some of the decisions deal wholly with
cases relating to common carriers. Some deal with

           ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.      149
 Dec. 1934         Dissenting Opinion Per TOLMAN, J.

both common and private carriers, and language
therein meant to apply to common carriers only cannot
be applied to this case, which involves the rights of a
private carrier only. General expressions as to the
right of the state to exercise the police power over its
highways I concur in heartily, but as I have already
said, such powers must be exercised by general rules
applicable alike to all similarly situated. To forbid
the use of the highway to one qualified to use it,
while permitting all others similarly situated to use
it freely, is discriminatory and arbitrary action.

The recent case of Wald Storage & Transfer Co.
v. Smith, 4 Fed. Sup. 61, decided by a Federal district
court, while seemingly confined to contract carriers,
only holds (1) that the state in the exercise of the
police power may preserve the state's property in
the roads from injury, and (2) that an order within
the apparent scope of the railroad commission is
presumptively valid, and the burden is on the complaining
party to show arbitrary action. So far, I am in accord
with the opinion, and I think that the decision goes no
further; but if it does, it is not binding upon us and
would not justify us in disregarding the rights
recognized and made inviolate by our state and Federal
constitutions.

Our Federal supreme court, in Stephenson v. Binford,
287 U.S. 251, 53 S. Ct. 181, 87 A.L.R. 721, affirmed
a judgment sustaining an act relating to contract
carriers which bears some similarity to the act
here under consideration. The court passed upon
only the constitutionality of the act in a broad sense,
and not at all upon any administrative action such
as we have here. It seems to have been assumed that
all rules made by the administrative body would be
general in their application, and no question of
discrimination against a particular applicant for a permit

 150    ROBERTSON v. DEPARTMENT OF PUBLIC WORKS.
           Dissenting Opinion Per TOLMAN, J.      180 Wash.

or of arbitrary action was raised or discussed. The
court expressly limited its inquiry as follows:

"We confine our inquiry to the question whether, in
the light of the broad general rule just stated, the
statute may be construed and sustained as a constitutional
exercise of the legislative power to regulate the
use of the state highways. Provisions of the statute
assailed on the ground that they are not highway
regulations and violate the due process of law clause
are: the requirement that the private contract carrier
before engaging in business must obtain a permit upon
considerations relating to the effect of their competition
upon existing common carriers; the provision
authorizing the railroad commission to fix the minimum
rates of such private carriers operating in competition
with common carriers, which shall not be less than the
rates prescribed for common carriers for substantially
the same service; and the requirement, as appellants
interpret the statute, that such private carriers must
furnish cargo insurance policies and bonds."

Since none of the questions decided in that case are
here directly involved, and since, in my opinion, we
should place our decision squarely upon the discriminatory
and arbitrary action by the department, not in
an attempt to regulate but in absolute denial of the
right to use the highway, without a showing of any
necessity therefor, the case presents nothing of interest
here.

Moreover, in Stephenson v. Binford, supra, there
is no modification or denial of that just and wholesome
doctrine enunciated by the same august tribunal in
an earlier case.

"Though the law itself be fair on its face and
impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye and an
unequal hand, so as practically to make unjust and
illegal discriminations between persons in similar
circumstances, material to their rights, the denial of equal
justice is still within the prohibition of the Constitution."

                     TJOSEVIG v. BUTLER.                151
 Dec. 1934               Statement of Case.

Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct.
1064, 30 Law Ed. 220.

I do not suggest that the department has acted with
an evil eye or intentionally with an unequal hand, but
it seems evident that, in this instance, it did overlook
the well-established law that even the police power
must be administered impartially.

Being convinced that the department misapplied
the statute, under the facts of this case, it is my view
that the judgment appealed from should be reversed.

BEALS, C.J., and HOLCOMB, J., concur with TOLMAN, J.