COMMON CARRIERS ‑- AUTO TRANSPORTATION COMPANIES ‑- SCOPE OF VAN POOL EXEMPTION

COMMON CARRIERS ‑- AUTO TRANSPORTATION COMPANIES ‑- SCOPE OF VAN POOL EXEMPTION

(1) Under RCW 81.68.010(3), as amended by § 1, chapter 121, Laws of 1975-76, 2nd Ex. Sess., a van pool operator would be considered to be in competition with or infringing upon the service of an existing auto transportation company if its van pool were to travel the same route and/or serve the same termini as that company and were to solicit passengers who would otherwise have utilized the services thereof.

(2) Consideration of several related factual situations involving the scope of the van pool exemption and the loss thereof by reason of competition between a van pool operation and an existing auto transportation company.

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                                                                October 27, 1978

Honorable Max E. Benitz
State Senator, 8th District
Route 2, Box 181
Prosser, Washington 99350                                                                                                               Cite as:  AGLO 1978 No. 34

Dear Senator Benitz:

            By letter previously acknowledged you have requested an opinion of this office on several questions relating to what you have described as the "vanpool exemption" from the definition of "auto transportation company" in RCW 81.68.010(3);i.e., so much of that definition as was added to the statute by § 1, chapter 121, Laws of 1975-76, 2nd Ex. Sess. and reads as follows:

            "The term 'auto transportation company' shall not include, nor shall the provisions of this chapter apply to, any operation whereby passengers are transported between their places of abode, or termini near such places, and their places of employment, in a motor vehicle with a seating capacity including the driver not exceeding fifteen persons, in a single, daily  [[Orig. Op. Page 2]] round trip where the driver himself is also on the way to or from his place of employment:  PROVIDED, That said transportation or operation shall not compete with nor infringe upon service of an existing auto transportation company certificated under this chapter."

            We will state your specific questions along with our answers thereto within our analysis below.

                                                                     ANALYSIS

            Question (1):

            First you have asked:

            "In an area served by privately-owned auto transportation companies certificated under Chapter 81.68 RCW, what actions by individuals participating in a vanpool, or actions of an employer or other person promoting the concept of vanpooling, would be deemed to constitute 'competition' or 'infringement' upon service of an existing auto transportation company, such that the provisions of Chapter 81.68 RCW would become applicable to the participating individuals or the employer?"

            As you have noted, the answer to this question depends on the meaning to be given to the words "compete" and "infringe" in the proviso to RCW 81.68.010(3),supra, as amended.  Once again, that proviso‑-through the operation of which an otherwise exempt "vanpool" will become, instead, a regulated "auto transportation company"1/ reads as follows:

            ". . . PROVIDED, That said transportation or operation shall not compete with nor infringe upon service of an existing auto transportation company certificated under this chapter."

            It is a general rule of statutory interpretation that exceptions to general provisions are to be narrowly construed.  State v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977).  Provisos are, for that reason, also to be strictly construed.  State v. Wright, 84 Wn.2d 645, 529 P.2d 453 (1974).  However, the basic purpose of all statutory interpretation is to ascertain and give effect to the intent of the legislature.  State v. Wright,id.;Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965).  Furthermore, in ascertaining legislative intent the words of a statute are to be given their common ordinary meaning in the absence of some special statutory determination to the contrary.  New York Life Insurance Co. v. Jones, 86 Wn.2d 44, 541 P.2d 989 (1975).  Here, to "compete" means "to seek or strive for something . . . for which others are also contending . . ." and to "infringe" connotes encroachment or trespass upon the rights of another.  See,Webster's Third New International Dictionary (1968) at p. 463 and p. 1161.  Finally, the terms of the proviso, as thus defined, are to be construed in light of the remainder of the statute.  State v. Wright,supra.

            An auto transportation company is essentially one which transports passengers over the public highways "between fixed termini or over a regular route . . ." RCW 81.68.010(3), supra.  Therefore, in order to compete with or infringe upon the service of an existing auto transportation company a van pool operator would first have to be serving the same termini and/or route served by an auto transportation company.  And secondly, since the apparent purpose of the proviso is to protect the rights of certified auto transportation companies, a van pool operator in order to be competing or infringing would have to be soliciting passengers who would otherwise have utilized the services of the existing auto transportation company.

            Thus, our answer to your first question is that a van pool operator would be considered to be in competition with or infringing upon the service of an existing auto transportation  [[Orig. Op. Page 4]] company if the van pool were to travel the same route and/or serve the same termini as that company and were to solicit passengers who would otherwise have utilized the services thereof.2/

            Question (2):

            Your second question asks:

            "Would a vanpool organized among employees of a firm be considered in competition with or infringing upon service of a certificated carrier merely because the certificated carrier provides service capable of transporting said employees to and from work?"

            Such a van pool would not necessarily be considered to come within the terms of the proviso to the van pool exception merely because an existing auto transportation company provides service capable of transporting the same employees to and from work.  The answer to this question, instead, would turn on a factual determination as to whether the van pool operation served the same termini and/or route and attracted passengers who would otherwise have utilized the services of the auto transportation company.

            Question (3):

            Next you have asked:

            "Would your answer to question No. 2 be any different if the employer or a group of  [[Orig. Op. Page 5]]

employers promoted the concept of vanpooling and made available to interested employees lists of names of other employees who had indicated an interest in the concept of vanpooling?  If so what would be your opinion?"

            Our answer to your second question, supra, would not necessarily be different simply because the employer or a group of employers so promoted the concept of van pooling and made available to interested employees lists of names or other employees who had indicated an interest in the concept of van pooling.  If the van pooling operation itself is not subject to regulation, those promoting the the concept and coordinating interested parties would not make those operations subject to regulation.  Stickler v. Schaaf, 199 Wash. 372, 91 P.2d 1007 (1939).  If, however, the van pool operation is found to be subject to regulation and to have been operating without a certificate as required by RCW 81.68.040, those promoting that operation could be considered to have aided and abetted a violation of chapter 81.68 RCW.  See Strickler v. Schaaf, id.; RCW 81.04.390.

            Question (4):