OFFICES AND OFFICERS - STATE - TOLL BRIDGE AUTHORITY - FERRIES - CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY FOR PASSENGER SERVICE BY VESSEL WITHIN 10 MILES OF EXISTING FERRY SERVICE

OFFICES AND OFFICERS - STATE - TOLL BRIDGE AUTHORITY - FERRIES - CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY FOR PASSENGER SERVICE BY VESSEL WITHIN 10 MILES OF EXISTING FERRY SERVICE.

A certificate of public convenience and necessity may legally be granted to furnish passenger service by vessel only if such service is either not over any waters within ten miles of an existing Washington state ferry crossing or does not constitute ferry service.

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                                                              September 19, 1960

Washington Toll Bridge Authority
Transportation Building
Olympia, Washington                                                                                  Cite as:  AGO 59-60 No. 142

Attention:  !ttMr. D. B. Hedges,Executive Secretary

Gentlemen:

            We are in receipt of your letter of July 27, 1960, in which you request our opinion on a question which we paraphrase as follows:

            In view of RCW 47.60.120, may a certificate of public convenience and necessity legally be granted to furnish passenger service by vessel if such service is either not over any waters within ten miles of an existing Washington state ferry crossing or does not constitute ferry service?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            You have advised us of the following facts giving rise to your request:  The Authority is in receipt of a communication from the Washington Public Service Commission advising that consideration is being given to an application from the Marine Commuter Corporation for a certificate of public convenience and necessity to furnish passenger service by vessel between Seattle and Tacoma.  You advise that ferry service  [[Orig. Op. Page 2]] is presently maintained by the Washington state ferries between Tacoma (Point Defiance) and Vashon Island, and between Seattle (Fauntleroy) and Vashon Island and Point Southworth.

            There are two statutes relating to ferry or bridge crossings within ten miles of a Washington State Toll Bridge Authority bridge or ferry route.  These two statutes are section 6, chapter 179 Laws of 1949 (RCW 47.60.120), and section 13, chapter 173, Laws of 1937 (RCW 47.56.220).  The 1937 statute, RCW 47.56.220, is part of the 1937 toll bridge act, and the 1949 statute, RCW 47.60.120, is part of the 1949 Washington state ferry act.  Both statutes by their terms are binding upon, among others, the Toll Bridge Authority, the state, and all its departments and agencies; limit the powers of the legislature; and they are deemed to constitute a contract to that effect for the benefit of bondholders.

            In Appendix A, attached hereto, both statutes are set forth in parallel columns for ease in comparison.  As the emphasized portions indicate, the earlier 1937 statute, RCW 47.56.220, bans

            ". . . ferry or other similar means of crossing the said waters within the said distance and connecting or plying directly or indirectly between the lands or extensions thereof or abutments thereon on both sides of the waters spanned or crossed by such bridge . . ."

            In comparison, the later 1949 statute, RCW 47.60.120, bans

            ". . . any other ferry crossing upon or bridge over any such waters within ten miles of any such crossing or bridge operated or maintained by the Authority . . ."

            These two statutes were considered by this office in an opinion to the Honorable James Munro, Prosecuting Attorney, Kitsap County, under date of September 14, 1949 [[Opinion No. 49-51-128]].  We were there concerned with the applicability of these two statutes to a proposed ferry line between Ballard and Suquamish which was within ten miles of the Agate Pass bridge.  In our opinion we commented that the above quoted language of the 1949 ferry statute ". . . would appear to be broad enough to prohibit any ferry operation within ten miles . . ." We pointed out in that opinion that the 1949 ferry statute was inapplicable because the state had not at that time begun operation of a ferry system.  We further pointed out that the 1937 toll bridge statute was inapplicable because that statute only banned crossings between the lands that are connected by a toll bridge.  We concluded therefore, that the proposed ferry line was not prohibited by law.

            Inasmuch as the state now operates a ferry system, we must decide whether or not the 1949 ferry statute is broad enough to prohibit any  [[Orig. Op. Page 3]] other ferry operation over any waters within ten miles of a Washington state ferry crossing.  In this regard two questions must be considered.  The first is whether or not the 1949 ferry statute can be construed as we did the 1937 toll bridge statute to ban only crossings between the lands that are connected by a Washington state ferry crossing.  The second question is whether or not the 1949 ferry statute can be construed to ban only "competing" crossings; that is, ferry crossings which would in fact divert a significant amount of traffic from the Washington state ferries.

            In construing the 1949 ferry statute set forth in Appendix A, we must give consideration to two fundamental rules of statutory construction.  The first rule is that where the language of a statute is plain it admits of but one meaning and interpretation is unnecessary.  Our court, in In re Eaton's Estate, 170 Wash. 280, 285, 16 P. (2d) 433, stated:

            "'And if the words of the statute are in themselves precise and unambiguous no more is necessary than to expound these words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature.'  Maxwell, Interpretation of Statutes (6th ed.), p. 1."

            The second rule is that in construing statutes which revise earlier laws, resort to the earlier statute is of great importance in ascertaining the legislative intent, for where a material change is made in the wording of a statute, a change in legislative purpose must be presumed.  Our court, in Graffell v. Honeysuckle, 30 Wn. (2d) 390, 399, 191 P. (2d) 858, stated:

            "In construing statutes which re enact, with certain changes, or repeal other statutes, or which contain revisions or codification of earlier laws, resort to repealed and superseded statutes may be had, and is of great importance in ascertaining the intention of the legislature, for, where a material change is made in the wording of a statute, a change in legislative purpose must be presumed.  In Re Phillips' Estate, 193 Wash. 194, 74 P. (2d) 1015, and cases therein cited; Great Northern R. Co. v. Cohn, 3 Wn. (2d) 672, 101 P. (2d) 985; Longview Co. v. Lynn, 6 Wn. (2d) 507, 108 P. (2d) 365."

            Applying the first rule of statutory construction, it is clear that the 1949 ferry statute, RCW 47.60.120, plainly and unambiguously bans all other ferry crossings over any waters within ten miles of existing Washington state ferry crossings.  This 1949 statute does not limit its ban to crossings between the lands that are connected by a Washington state ferry  [[Orig. Op. Page 4]] crossing.  Neither the 1949 ferry statute nor the earlier 1937 toll bridge statute contains the word "competition."  The 1941 code committee saw fit to insert in the title of both statutes the word "competing."  A title supplied by the 1941 code committee was, of course, not enacted by the legislature and does not have the force of law.  In our earlier opinion, we characterized these two statutes as relating to ferry operations in "competition" with toll bridges and ferries.  We did not intend in our opinion by the use of the word "competition" to imply that competition as a matter of fact was involved.  Rather, we used this word as a shorthand way of expressing the point that rival crossings were prohibited as a matter of law.  The statute itself plainly and unambiguously prohibits rival ferry crossings over any waters within ten miles regardless of whether the rival ferry crossing is between the lands that are connected by a Washington state ferry crossing and regardless of whether in fact a significant amount of traffic would be diverted.

            The history of legislation leading up to the 1949 ferry statute, RCW 47.60.120, completely nullifies any argument that the legislature intended anything other than what the plain meaning of the statute indicates.  As indicated by the emphasized portions of the 1937 toll bridge statute and the 1949 ferry statute set forth in Appendix A, in adopting the 1949 statute the legislature made material changes in the wording of the ban.  Whereas the 1937 statute banned only crossings between the lands that are connected, the 1949 statute banned all crossings over any waters within ten miles of a Washington state ferry crossing.  In accordance with the second rule of statutory construction previously referred to, since a material change was made in the wording of a statute, we must presume a change in the legislative purpose.  We conclude, therefore, that the legislature changed the wording in order to establish an absolute ban on all ferry crossings over any waters within ten miles of a Washington state ferry crossing.

            The 1937 toll bridge statute, chapter 173, Laws of 1937 (chapter 47.56 RCW), was based upon the California toll bridge act and many of the provisions such as RCW 47.56.220 are redrafts of the comparable California statute.  The original California toll bridge act was enacted in 1929, Cal. Anno. Codes (West's), Streets and Highways § 30000 et seq.  The 1929 California version of what became RCW 47.56.220 banned all free ferry crossings within five miles of any toll bridge established by the California toll bridge authority, and in addition banned any bridge or free ferry at a distance beyond five miles but less than fifteen miles without the approval and consent of the California toll bridge authority which approval and consent could be withheld if it were determined that such bridge or ferry would be competitive.  Cal. Anno. Codes (West's), Streets and Highways §§ 30350-30357.  Prior to our enactment of the 1937 toll bridge act this portion of the 1929 California toll bridge act was amended three separate times by the California legislature.  Stats. (Cal.) 1931, c. 401, p. 923,  [[Orig. Op. Page 5]] § 4; Stats. (Cal.) 1933, c. 10, p. 29, § 11; and Stats. (Cal.) 1935, c. 228, p. 902, § 12.  The 1931 amendment removed the wording regarding competition and inserted a ban of all other ferry and bridge crossings within a ten-mile limit.  This language, inserted by the 1931 amendment and still in the California law, was essentially adopted by our legislature in § 13, c. 137, Laws of 1937 (RCW 47.56.220).

            Inasmuch as our legislature adopted the absolute ban of the 1931 amendment of the California act, rather than the earlier 1929 version, we must presume that our legislature, just as the California legislature, intended to eliminate any factual question as to competition.  Our legislature, in enacting § 6, c. 179, Laws of 1949, continued the absolute ban and did not change the law to introduce a factual question as to competition.  We conclude, therefore, that the 1949 ferry statute prohibits all ferry crossings over any waters within ten miles of a Washington state ferry crossing.

            The application referred to in your letter is not characterized as ferry service, but rather as passenger service by vessel.  It should be noted that while the 1937 toll bridge statute banned "ferry or other similar means of crossing," the 1949 ferry statute limited its ban to "any other ferry crossing."  In accordance with the second rule of statutory construction set forth above, we must presume that the legislature in making this material change in wording intended to limit the ban in the 1949 statute to ferries and not to include "other similar means of crossing."

            Whether or not the instant application is for ferry service over any waters within ten miles of an existing Washington state ferry crossing is a matter of fact that must be determined not only by considering the distances involved, but also by applying the meaning of the word "ferry" to the factual nature of the proposed service.  Neither the 1937 toll bridge act nor the 1949 ferry act defines the word "ferry."  The 1935 amendment to the California toll bridge act added a definition of the word "ferry" to that act.  The definition is as follows (Stats. 1935 c. 228, p. 902, § 12 (Cal. Anno. Codes (West's), Streets and Highways § 30352)):

            "The term 'ferry' as used herein shall include vessels of any kind or character operating upon the inland waters of this State for the transportation of persons or vehicles other than railway freight cars, including such vessels operated by or in conjunction with any railroad or interurban railroad or other common carrier."

            Inasmuch as our legislature adopted the California statute without adopting this definition, we must presume that the legislature intended by the word "ferry" what our court has held the word to mean.

             [[Orig. Op. Page 6]]

            In chapter 248, Laws of 1927 (chapter 81.84 RCW), our legislature placed in the Washington Public Service Commission the power to grant certificates of convenience and necessity for the operation of vessels or ferries.  This law did not define the word "ferry."  In 1930, in the case of Puget Sound Navigation Co. v. Department of Public Works, 156 Wash. 377, 287 Pac. 52, our court was faced with the question of whether or not a steamer transporting passengers and freight and operated under a passenger and freight certificate was a ferry within the meaning of the act.  The problem arose in connection with § 1, chapter 248, Laws of 1927 (RCW 81.84.020), which prohibited the Commission from granting a certificate of convenience and necessity between districts and/or territory already served.  In concluding that the operation before it was not a ferry in common and legal parlance, the court defined a "ferry" in a "strict technical sense" as:

            "'. . . a continuation of the highway from one side of the water over which it passes to the other, and is for the transportation of passengers, or of travelers with their teams and vehicles and such other property as they may carry or have with them. . . . In a strictly ferry business, property is always transported only with the owner or custodian thereof; and ferrymen who do nothing but a ferry business, and have nothing but a ferry franchise are bound to transport no other property; . . .  But they may combine, and usually do combine, with the ferry business, the business of a common carrier, carrying freight and merchandise without the presence of the owner or custodian like other carriers engaged in the transportation of such freight; . . . As ferrymen they are under a public duty to transport with suitable care and diligence all persons with or without their vehicles and other property; and as common carriers, it is their duty to carry all freight and merchandise delivered to them.'  Mayor etc. of New York v. Starin, 106 N.Y. 1, 12 N.E. 631."  (p. 383)

            The determination of whether or not the instant application is for ferry service over any waters within ten miles of an existing Washington state ferry crossing is a matter for the Washington Public Service Commission to determine by considering the distances involved and also by applying the meaning of the word "ferry" to the factual nature of the proposed service.  In Puget Sound Navigation Co. v. Dept. of Public Works, 152 Wash. 417, 278 Pac. 189, and State ex rel. Puget Sound Navigation Co. v. Dept. of Public Works, 168 Wash. 237, 2 P. (2d) 686, our supreme court reversed and remanded the matter to the Commission because the Commission had acted upon applications for service without determining the essential fact of its jurisdiction, namely, whether or not the territory was  [[Orig. Op. Page 7]] already served.  Our court pointed out that this was a matter for the Commission to determine in the first instance.  Similarly, in this case, the Commission must in the first instance determine the facts essential to its jurisdiction, namely, whether or not this is an application for ferry service over any waters within ten miles of an existing Washington state ferry crossing.  If the Commission determines that it is such a ferry service, by virtue of RCW 47.60.120, the Commission is without jurisdiction to grant a certificate.  If the Commission determines that it is not, the Commission has jurisdiction to grant a certificate to a qualified applicant.

            We conclude therefore, that under § 6, chapter 179, Laws of 1949 (RCW 47.60.120), a certificate of public convenience and necessity may legally be granted to furnish passenger service by vessel only if such service is either not over any waters within ten miles of an existing Washington state ferry crossing or does not constitute ferry service.  This determination is a matter which in the first instance is for the Washington Public Service Commission.

            We trust that the foregoing will be of assistance.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STANTON P. SENDER

Assistant Attorney General