OFFICES AND OFFICERS - STATE - PUBLIC SERVICE COMMISSION - DETERMINATION OF MOTOR FREIGHT TARIFF

OFFICES AND OFFICERS - STATE - PUBLIC SERVICE COMMISSION - DETERMINATION OF MOTOR FREIGHT TARIFF.

(1) The Washington Public Service Commission would not lose its jurisdiction to regulate common carriage by dump truck, if it published its tariff to erroneously designate the tariff rate for such transportation as "wages" and "rental."

(2) The Washington Public Service Commission is without legal authority to publish a tariff which does not constitute a statement of fair, just and reasonable rates for a described transportation service.

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                                                                 August 27, 1959

Honorable Dayton A. Witten, Commissioner
Washington Public Service Commission
Insurance Building
Olympia, Washington                                                                                                 Cite as:  AGO 59-60 No. 63

Dear Commissioner Witten:

            By your letter dated July 6, 1959, previously acknowledged, you have requested that this office issue its formal opinion respecting the power of the Washington Public Service Commission to publish a certain motor freight tariff.  Specifically, you have asked us two questions:

            1.  "If this commission publishes its tariff separating the rates for dump truck service by common carrier into (1) 'wage rate for drivers' and (2) 'truck rental' would it thereby lose jurisdiction to regulate such operators because the nature of the service would be changed from that of a public service to that of an attempt to regulate 'wage rates' and 'truck rental'?"

            2.  "Would the commission have authority to make, fix and publish the tariff hereinbefore described?"

            Our answer to both questions is in the negative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            We understand the factual background to your request for an opinion to be as follows:

            The Washington Public Service Commission has issued a number of motor freight common carrier permits authorizing the transportation in intrastate commerce of "building materials, in bulk, requiring the use of dump truck, viz.:  Sand; gravel; rock; concrete mix; crushed or ground building or road-building materials; bulk cement; refuse (worthless materials); used brick, stone, tile or blocks; or materials of excavation" in accordance with the rates and charges as contained in Washington Public Service Commission Tariff No. 4-A, item 780.  This tariff is compiled and published by the commission pursuant to the provisions of RCW 81.80.150, and, as presently effective, provides rates based upon an hourly charge which varies with the capacity of the dump truck and the geographical location of the job.  The tariff does not break down the rates into any component parts but rather states a single total amount per hour for the service of the carrier in transporting the materials set forth above.

            The practice of certain building contractors who employ these dump truckers is to carry the drivers of the trucks on the contractor's payroll and to issue two checks in payment for the services, one for the "driver's wages," and another which purports to represent "rental" for the vehicle.  The driver's gross "wage" plus the "rental" together total the tariff rate.  This practice is followed even though the driver of the vehicle may also be the permit holder.

            It is to be emphasized at this point that in fact and in law the common carrier permit holder is an independent contractor and the drivers of the vehicles (when other than the permit holder himself) are the permit holder's employees.  We understand that the parties themselves do not treat the operation described as resulting in the rental of any equipment or as creating an employee employer relationship.  We are advised that the necessary incidents of dominion and control over the equipment and reservation of the power to direct the details of the work which would give rise to a master-servant relationship between the permittee or his driver and the building contractor are not present.  The practice of separating the charge for the transportation into the "wages" and "rental" items is at the insistence of the building contractor and solely to give him control over industrial insurance and workmen's compensation payments.

            It is now proposed by an organization, some of whose members are dump truck operators and owners, that the commission amend its tariff by publishing the rates for common carrier dump truck operations in a new and unique form, namely, to set out separately the presently effective  [[Orig. Op. Page 3]] contract wage rate for drivers and an amount designated"truck rental" which would simply be the difference between the drivers' hourly wage and the total tariff rate.  This proposal is ostensibly for the purpose of conforming the tariff with the presently prevailing practice in the trade.

            You have asked us first whether the publication of the tariff as proposed would result in a loss of the commission's jurisdiction to regulate the rates and operations of the dump truck permittees.

            As already indicated, we have assumed for the purposes of this opinion that the permittees occupy the status of independent contractors who undertake to transport property for the general public by motor vehicle for compensation and are therefore common carriers within the statutory definition of RCW 81.80.010.

            While the question as to what constitutes common carriage is one of law, the status of a particular individual as such is a question of fact to be determined from his method of operation.  Miles v. Enumclaw Co-op Creamery Corp., 12 Wn. (2d) 377, 121 P. (2d) 945;State ex rel. Silver Lake R. & L. Co. v. Public Service Commission, 117 Wash. 453, 201 Pac. 765.  If this method of operation results in the furnishing by a single entity of a complete for hire transportation service, we have a case of common (or contract) carriage.  No pretended leasing arrangement can alter this status.  State of Oregon v. O. K. Transfer Co., 330 P. (2d) 510.  By the same token the Washington Public Service Commission cannot, by erroneously designating a tariff rate for such transportation as "wages" and "rental," divest itself of its obligation to regulate common carriage in the public interest.

            We now turn our attention to your second question, whether the commission can legally publish the tariff in the form proposed.

            RCW 81.80.150 provides in pertinent part as follows:

            "The commission shall make, fix, construct, compile, promulgate, publish, and distribute tariffs containing compilations of rates, charges, classifications, rules, and regulations to be used by all common carriers.  In compiling such tariffs it shall include within any given tariff compilation such carriers, groups of carriers, commodities, or geographical areas as it determines shall be in the public interest.  Such compilations and publications may be made by the commission by compiling the rates, charges, classifications, rules, and regulations now in effect, and as they may be amended and altered from time to time after notice  [[Orig. Op. Page 4]] and hearing, by issuing and distributing revised pages or supplements to such tariffs or reissues thereof in accordance with the orders of the commission: . . ."

            In exercising its authority to publish these tariffs, the commission must first fix just, fair, and reasonable rates and charges for the transportation of property in common carriage.  RCW 81.80.130.  The transportation rates which the commission has thus determined to be proper are the rates which must be published in the commission's tariff.  A driver's contract wages do not constitute a rate for such transportation.  Rather the wages a carrier must pay his drivers are an operating expense of the carrier, and, although to the extent reasonable are considered by the commission along with other operating expenses and operating revenues in arriving at a just, fair, and reasonable rate to be charged for the transportation service, the wages, themselves, do not necessarily bear any relationship to this rate.

            We are not advised whether the proposed tariff would be expected to accomplish an automatic "sliding scale" type of rate adjustment coincident with future adjustments in drivers' wage rates.  We are of the opinion, however, that under RCW 81.80.150 this could not be the effect since any amendment to published motor freight carrier tariff rates must be pursuant to notice and hearing.

            The item of "truck rental" in the proposed tariff does not represent anything at all, since none of the equipment is rented.  If these dump truckers were conducting a bona fide truck rental operation, they would not even be subject to the commission's regulatory jurisdiction as provided in RCW 43.53.050.  The Washington Public Service Commission, by publishing the tariff as proposed, would be purporting to regulate a type of operation and service not in fact offered by the dump truckers and which, if it were offered, the commission would have no power to regulate.

            The purpose and function of a rate tariff is to advise the public that a particular class of carrier will furnish "certain services under certain conditions for certain prices."  Union Wire Rope Corporation v. Atcheson, Topeka and Santa Fe Railway Co., 66 F. (2d) 965, 966.  Numerous reported decisions of federal and state regulatory agencies recognize that the precise character of the service offered by a public service company, and the rates for that service, must be set forth in the published tariff in such manner that the public can ascertain "accurately and definitely the cost to a customer of a given service under definite service conditions."  Re Portland Gas Light Co., 69 P.U.R. (N.S.) 154.  See also,Re Taxicab Operators, Drivers, and Garage Employees Local Union No. 935, 62 P.U.R. (N.S.) 188.  Clearly, the proposed tariff would not meet these requirements.

             [[Orig. Op. Page 5]]

            In the case before us, thegiven service is the hauling of specified building material in dump trucks.  It is a complete common carrier transportation service.  Thecost to the customer is the tariff rate which he must pay as the price for the service.  The cost of the service to the customer is not the rental of a vehicle, or the wages of a driver any more than it is the cost of the fuel and tires or the depreciation of the vehicle.  These are operating expenses borne by the carrier and are, as such, of no concern to the shipping customer.

            We conclude that the tariff, if published as proposed, would not contain a statement of fair, just, and reasonable rates and charges for a described transportation service and is therefore beyond the power granted the commission by the legislature.

            We trust that the above satisfactorily answers your questions.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DAVID S. BLACK
Assistant Attorney General