OBLIGATION OF BUS COMPANY, A PUBLIC UTILITY, TO MAINTAIN ADEQUATE AND SUFFICIENT SERVICE

OBLIGATION OF BUS COMPANY, A PUBLIC UTILITY, TO MAINTAIN ADEQUATE AND SUFFICIENT SERVICE

1. Bus company operating under a city franchise and under the jurisdiction of the Washington Public Service Commission has an obligation to maintain adequate and sufficient service when the public interest is involved.

2. Complaints may be filed for failure to render adequate and sufficient service.

3. The Attorney General represents the Washington Public Service Commission and the public on hearings involving complaints against a public service company.

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                                                                   June 19, 1950

Honorable Gordon J. Brown
State Representative 29th District
237 Farallone Avenue, Fircrest
Tacoma, Washington                                                                                                              Cite as:  AGO 49-51 No. 286

Dear Mr. Brown:

            We have your letter in which you request our opinion as to the rights of certain communities in Pierce county to obtain additional bus service.  Your letter states:

            "I have been requested by a group of my constituents to inquire of you as to the legal rights of two suburban communities now being served by the Tacoma Transit Co.

             [[Orig. Op. Page 2]]

            "One of these communities is a fourth class town, The Town of Fircrest, and the other community is University Place, an unincorporated area in Pierce County.

            "These communities are presently being served by the Tacoma Transit Co. but there is no franchise or other contractual agreement between the company and the communities.  The company has one way and another furnished all of the service for these communities in the last 40 years or more.

            "It is felt here that the service is inadequate in relation to the size of the communities and the revenue received."

            You then ask the following questions:

            "First, Does the transit company have an obligation as a public utility to maintain service for these communities?  Responsible officials of the company have stated that they have no responsibility and can suspend service at any time.  The second question is:  Can these communities seek relief from the state if inequalities can be shown, and if so, whose responsibility is it to represent them."

            The conclusions reached may be summarized as follows:

            1. A bus company operating under a city franchise and under the jurisdiction of the Washington Public Service Commission has an obligation to maintain adequate and sufficient service when the public interest is involved.

            2. Complaints may be filed for failure to render adequate and sufficient service.

            3. The Attorney General represents the Washington Public Service Commission and the public on hearings involving complaints against a public service company.

                                                                     ANALYSIS

             [[Orig. Op. Page 3]]

            From your letter it is indicated that the service you inquire about is rendered in areas outside the city limits of Tacoma.  However, it is our impression that your questions concern service both in the city of Tacoma and outside the city limits of Tacoma.  Chapter 11, Laws of 1921, as amended (Rem. Rev. Stat., sec. 6387 et seq.), concerning auto transportation companies, provides:

            "No portion of this section shall apply to persons operating motor vehicles when operated wholly within the limits of incorporated cities or towns under a franchise granted by a city prior to the enactment of this law, and for a distance not exceeding three (3) road miles beyond the corporate limits of the city or town in Washington in which the original starting point of such vehicle is located, and which operation either alone or in conjunction with another vehicle or vehicles is not a part of any journey beyond said three‑mile limit."

            In reading this section of the law it is indicated that the Washington Public Service Commission has no jurisdiction over buses operating wholly within the limits of incorporated cities or towns and for a distance not exceeding three road miles beyond the corporate limits of the city or town.  This question was passed upon in 1937 by our supreme court in the case ofState ex rel. Spokane United Railways v. Department of Public Service, et al., 191 Wash. 595, 71 P. (2d) 661, and the court held that, under our public service laws of the state of Washington, motor buses operating within incorporated cities and a three‑mile limit, even though performing the same service as street railways previously performed, were under the jurisdiction of the then-named Department of Public Service.

            It is true the Tacoma Transit Company has no certificate of convenience and necessity, even though operating outside the city limits of Tacoma, yet it does have a franchise from the city of Tacoma and obtains its rights to operate in the city of Tacoma as a result of that franchise.  While operating under this franchise and being under the jurisdiction of the Washington Public Service Commission, we believe the Tacoma Transit Company has an obligation to to furnish adequate and sufficient service to the public which it is serving.  In the case ofState ex rel. Grinsfelder v. Spokane Street Railway Co., 19 Wash. 518, 53 Pac. 719, the court stated:

             [[Orig. Op. Page 4]]

            "* * * for no discretion is vested by our laws in the charter of a street railway company that would authorize its discontinuance of a street railway line which it had already established and operated.  Permanency in the service of the public in a reasonable manner is an essential duty in all such avocations."

            The court further added:

            "* * * We conclude that a corporation of the nature of appellant, receiving its franchises from the state and entering upon the enjoyment of them, cannot cease to perform the functions which were the consideration for the grant of such franchises without the consent of the granting power.  The question of the public convenience is one which appeals to the discretion of the court."

            In the case ofDay v. Tacoma Railway and Power Co., 80 Wash. 161, 141 Pac. 347, the court, in discussing the Grinsfelder case, stated:

            "Under the rule announced in the Grinsfelder case, neither the grantee nor its successor in interest, having exercised the privileges conferred under a permissive franchise, can, against the will of the state, abandon the enterprise if the abandonment works a prejudice to the public interest.  This rule has abundant support in other jurisdictions."

            These two cases have been referred to and followed in numerous other cases by the supreme court and still furnish the basic decisions with reference to the abandonment of service by public service companies.  Based on these decisions, it is our opinion that the Tacoma Transit Company does have an obligation to maintain service for your communities.  There may be some question as to the authority to require the company to furnish service outside of the three‑mile limit of the Tacoma city limits because the Tacoma Transit Company has no certificate of public convenience and necessity, but, in view  [[Orig. Op. Page 5]] of the fact that this company has furnished service for a long period of time to numerous communities outside of the city limits of Tacoma and is under the jurisdiction of the Washington Public Service Commission, we feel that we can sustain an order of the Commission requiring them to furnish adequate and sufficient service to the public in those communities.

            There is no specific provision giving the Commission jurisdiction to act where a service is threatened to be discontinued, but section 80, chapter 117, Laws of 1911 (Rem. Rev. Stat., sec. 10422), authorizes the Commission, either on its own motion or on the motion of other complaints, to hold a hearing and consider the complaint; likewise, section 93, chapter 117, Laws of 1911 (Rem. Rev. Stat., sec. 10442), provides for proceedings by the Attorney General for violation of any of the public service laws and the rules and regulations of the Commission.

            In answer to your second question, in view of what we have stated above, it is our opinion that these communities can seek relief by filing complaints and asking the Commission, either on its own motion or on their complaints, to call a hearing so that all parties may be heard, and at which time the Commission can obtain facts as to whether or not the service as furnished by the Tacoma Transit Company is adequate and sufficient as defined in section 9, chapter 117, Laws of 1911 (Rem. Rev. Stat., sec. 10345).

            Probably it would be advisable for the people who are interested to obtain the services of counsel in order to help them prepare their case, but at the hearing the Attorney General represents both the Commission and the public and would be glad to assist the people from the various communities in the presentation of their case.

Very truly yours,

SMITH TROY
Attorney General

PHIL H. GALLAGHER
Assistant Attorney General