OFFICES AND OFFICERS ‑- STATE ‑- PUBLIC SERVICE COMMISSION ‑- INTERPRETATION OF 'CARRIERS' AS USED IN CHAPTER 295, LAWS OF 1961

OFFICES AND OFFICERS ‑- STATE ‑- PUBLIC SERVICE COMMISSION ‑- INTERPRETATION OF "CARRIERS" AS USED IN CHAPTER 295, LAWS OF 1961.

The provisions of chapter 295, Laws of 1961, apply only to those carriers who are in the business of transporting garbage and refuse for collection and/or disposal for regular customers in a specified area.

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                                                                 October 2, 1961

Honorable Patrick D. Sutherland
Commissioner, Washington Utilities
and Transportation Commission
Insurance Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 67

Dear Sir:

            By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:

            Do the provisions of chapter 295, Laws of 1961, apply only to those carriers who are in the business of transporting garbage and refuse for collection and/or disposal for regular customers in a specified area or does it also include those carriers having permits as general freight or as special commodity carriers, among which is included the commodity "refuse?"

            Our answer is that the provisions of this act apply only to those carriers who are in the business of hauling for regular customers in a specified area, and do not include general freight or special commodity carriers.

                                                                     ANALYSIS

            The term "garbage and refuse" collection company is defined in § 2 (7), chapter 295, Laws of 1961, as follows:

            "'Garbage and refuse collection company' means every person or his lessees, receivers, or trustees, owning, controlling, operating or managing vehicles used in the business of transporting garbage and refuse for collection and/or disposal for compensation, except septic tank pumpers, over any public highway in this state whether as a 'common carrier' thereof or as a 'contract carrier' thereof."

             [[Orig. Op. Page 2]]

            Section 5 of this act provides for certificates of convenience and necessity as follows:

            "No garbage and refuse collection company shall hereafter operate for the hauling of garbage and refuse for compensation without first having obtained from the commission a certificate declaring that public convenience and necessity require such operation.

            "Issuance of the certificate of necessity shall be determined upon, but not limited to, the following factors:  The present service and the cost thereof for the contemplated area to be served; an estimate of the cost of the facilities to be utilized in the plant for garbage and refuse collection and disposal, sworn to before a notary public; a statement of the assets on hand of the person, firm, association or corporation which will be expanded on the purported plant for garbage and refuse collection and disposal, sworn to before a notary public; a statement of prior experience, if any, in such field by the petitioner, sworn to before a notary public;and sentiment in the community contemplated to be served as to the necessity for such a service.

            "When an applicant requests a certificate to operate in a territory already served by a certificate holder under this chapter, the commission may, after hearing, issue the certificate only if the existing garbage and refuse collection company or companiesserving the territory will not provide service to the satisfaction of the commission."  (Emphasis supplied.)

            Section 5 also grants those carriers who were garbage and refuse collection companies at the time the act went into effect (July 1, 1961) a certificate of necessity without hearing:

            "Any garbage and refuse collection company which upon the effective date of this act is operating under authority of a common carrier or contract carrier permit issued under the provisions of chapter 81.80 RCW shall be granted a certificate of necessity without hearing upon compliance with the provisions of this chapter.   [[Orig. Op. Page 3]] Such garbage and refuse collection company which has paid the plate fee and gross weight fees required by chapter 81.80 RCW for the year 1961 shall not be required to pay additional like fees under the provisions of this chapter for the remainder of such year."

            Chapter 81.80 RCW contains provisions concerning motor freight common and contract carriers.  RCW 81.80.070 provides:

            "No 'common carrier,' 'contract carrier,' or 'temporary carrier' shall operate for the transportation of property for compensation in this state without first obtaining from the commission a permit so to do. . . ."

            In the case ofState v. Diamond Tank Transport, Inc., 2 Wn. (2d) 13, 97 P. (2d) 145 (1939), our court held that garbage was an item having property value within the terms of the motor carrier law and, consequently, garbage haulers were required to obtain a permit from the commission.

            In interpreting the provisions of chapter 295, Laws of 1961, we must consider this 1961 legislation together with the provisions of chapter 81.80 RCW, if possible.  It is a familiar rule of statutory construction that, where, as here, there are two legislative enactments relating to the same subject matter, and the later act does not expressly repeal the former, the two acts will be read together, and if possible, each will be given meaning, force, and validity.  Olympia State Bk. & Trust v. Craft, 56 Wn. (2d) 546, 354 P. (2d) 386 (1960);Lindsey v. Superior Court, 33 Wn. (2d) 94, 204 P. (2d) 482 (1949).

            If carriers with general freight rights or carriers with special commodity rights, among which is included the commodity "refuse," were included within the definition of garbage and refuse collection company in chapter 295, Laws of 1961, these carriers would be regulated not only as permit holders under chapter 81.80 RCW but also as certificate holders under chapter 295, Laws of 1961.  These carriers could be required to carry two separate plates, pay two separate plate and gross weight fees, file two separate annual reports, and be subject to two sets of laws and commission rules and regulations.

            It is evident from § 5 of chapter 295, providing that those garbage and refuse collection companies which have paid plate and gross weight fees for 1961 shall not be required to pay additional like fees under chapter 295, that the legislature intended that carriers should not be subject to the provisions of both chapter 81.80 RCW and this new law, at least in regard to such fees.  Further, the legislature, in  [[Orig. Op. Page 4]] § 2 (7), in defining a garbage and refuse collection company, provided that the act was to apply to someone in thebusiness of transporting garbage and refuse for collection and/or disposal.  Section 5 of this act, in pointing out the factors to be considered in issuing certificates, refers to area and territory to be served, and sentiment in the community to be served.  It is our opinion that these provisions of chapter 295 show a legislative intent that the act apply only to those carriers who are in the business of hauling for regular customers in a specified area and would not include general freight or special commodity carriers.  This interpretation of the language of the act is consistent with the past practice of the commission in regulating garbage and refuse haulers under permit.

            In arriving at the intent of the legislature, we may look to the administrative construction by the department charged with the act's enforcement.  It is a fundamental rule of construction that the court will give considerable weight in determining legislative intent to the administrative interpretation, especially when it is long continued, and the legislature, by its failure to amend the statute, silently acquiesces in the interpretation.  In re Lloyd's Estate, 53 Wn. (2d) 196, 332 P. (2d) 44 (1958); White v. State, 49 Wn. (2d) 716, 306 P. (2d) 230 (1957).

            In answer to our inquiry concerning commission practice, we have received from you a memorandum advising of past commission regulatory procedures toward garbage and refuse haulers operating under permit.  In this memorandum it is pointed out that by General Order M.V. No. 60, issued in 1937, each carrier was required to outline his exact service on April 1, 1937.  Thereafter, all permits were revised to authorize the specific service which the carriers were rendering on April 1, 1937.  The memorandum then continues:

            "As time went on the population increased as well as the number of truckers operating under permit, and new carriers trying to break into the business discovered that if they applied for specific items to be carried or a specifically confined territory to be covered, they would have a better chance of obtaining a permit without protest from the other carriers.  In this way a trend toward specialization in certain types of business developed, such as garbage hauling and disposal.  If a particular carrier decided to go into the garbage hauling business he applied to the Commission for a permit covering the territory of his choice, and the carriers hauling all types of commodities (General Freight) ordinarily did not  [[Orig. Op. Page 5]] protest because they were not interested in the small revenues obtained from garbage hauling."

            This memorandum then points out that beginning in 1949, with hearing No. 4020, the commission has attempted, in areas such as King, Pierce and Snohomish counties, to confine these specialized garbage hauling and disposal carriers to specified areas to prevent duplication of service and overlapping.  In order M.V. No. 66537, dated March 11, 1957, involving garbage hauling in the Spokane valley, the commission pointed out its practice in this connection:

            "In proceedings involving certain parts of Western Washington we have previously found that in situations where two or more carriers of garbage and refuse were authorized to haul in the same area the resulting competition for customers and the routing of several garbage trucks over the same residential streets caused wasteful duplication of service and fostered unsound economic practices by the carriers.  The carriers themselves in these instances besought the Commission to delineate an exclusive territory for each carrier.  After extended consideration of the matter, the Commission acceded to the request of the carriers.  With the cooperation of the carriers overlapping of authority and duplication of services were practically eliminated.  Experience has shown that having exclusive territories for garbage haulers serves and protects the public interests far better than when competition exists.

            "Since neither alleys nor sidewalks are commonly encountered in modern suburban residential areas, children at play, family cars and tradesmen's trucks are all constrained to use the streets.  If carriers are permitted, in addition to getting in each other's way physically while conducting their businesses, to compete in the same areas in the garbage business, it is inevitable that the customers of one be, to a greater or lesser extent, acquired by the other.  To the extent that the carrier income fluctuates and the necessity for continual adjustment of routes arises, business  [[Orig. Op. Page 6]] is adversely affected and both carriers and public suffer."

            See further proceedings in this matter:  Order M.V. No. 72042, dated December 14, 1959.

            Viewed against this background, it is our opinion that the legislature intended, in enacting a certificate law for garbage and refuse collection companies, to have the law apply only to those which are in the business of transporting garbage and refuse for collection and/or disposal for regular customers in a specified area.  As to those carriers having permits for general freight or as special commodity carriers, among which is included the commodity "refuse," it was the legislative intent to have these carriers remain under the permit law, chapter 81.80 RCW.  By remaining under the permit law, these carriers retain their present rights and are not subject to the provisions of two separate laws, one a permit and the other a certificate law.

            Pursuant to the powers granted the commission under § 4, chapter 295, Laws of 1961, the commission may promulgate rules and regulations not inconsistent with this act.  By such rules and regulations, the commission has the power to effectuate the legislative intent.  In particular, the commission, based on its experience, can delineate what constitutes being in thebusiness of transporting garbage and refuse for collection and/or disposal under the circumstances involved in any certain case.

            In conclusion, it is the opinion of this office that the legislature intended the provisions of chapter 295, Laws of 1961, to apply only to those carriers who are in the business of transporting garbage and refuse for collection and/or disposal for regular customers in a specified area.  The legislature intended that those carriers having permits as general freight or as special commodity carriers, among which is included the commodity "refuse," should continue to be governed under the motor carrier law, chapter 81.80 RCW, retaining their present rights.  Section 4, chapter 295, Laws of 1961, grants the commission the power to promulgate rules and regulations, not inconsistent with the terms of the act, to effectuate the legislative intent, thus allowing the commission to determine what constitutes being inbusiness under this act in any particular case.

            We trust that the foregoing satisfactorily answers your inquiry.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STANTON P. SENDER
Assistant Attorney General