It seems to me the decision in this case rests on a false hypothesis. It seems to hinge upon some inherent right of the respondent *Page 629 to transport passengers over the public highways for gain. No one has any such inherent right in the use of the public highways.Stephenson v. Binford, 287 U.S. 251, 53 S.Ct. 181,77 L.Ed. 288, 87 A.L.R. 721. In that case the court said:
"It is well established law that the highways of the state are public property; that their primary and preferred use is for private purposes; and that their use for purposes of gain is special and extraordinary, which, generally at least, the legislature may prohibit or condition as it sees fit."
Whatever rights respondent has derive from the state and are circumscribed by its certificate of necessity which entitles it to operate a regular service between Seattle and North Bend. By that certificate, it is not authorized to engage in a charter service at all — at least outside the termini designated. Yet it claims the right to maintain such service without let or hindrance simply because the legislature has not specifically designated charter service as coming within the regulatory power of the department of public service. While the powers of the department of public service are strictly statutory, it is an unwarrantedly narrow construction of the statute which denies the department control and supervision over charter service engaged in by auto transportation companies. The statute (Rem. Rev. Stat., § 6389 [P.C. § 234-5]), after defining the powers of the department over all transportation companies with some particularity, provides that it shall have power and authority —
". . . to supervise and regulate auto transportation companies in all other matters affecting the relationship between such auto transportation companies and the traveling and shipping public."
Of the extent of powers such as these, this court, in Stateex rel. Railroad Commission v. Great Northern R. Co., 68 Wn. 257,123 P. 8, said: *Page 630
"The legislature, acting within its constitutional powers, has, by statute, created the railroad commission and entrusted to its jurisdiction the broad and complex field covered by the duties of common carriers in their relation to the public as such. A jurisdiction so vast is of necessity covered in general terms. The dominant purpose of the act is remedial. There is, therefore, conferred by necessary implication every power proper and necessary to the exercise of the powers and duties expressly given and imposed."
It seems to me that, under any reasonable interpretation of the above-quoted portion of Rem. Rev. Stat., § 6389 [P.C. § 234-5], the department of public service has, by necessary implication, the power and authority to regulate and control charter service by auto transportation companies. Any other construction of the statute makes charter service an activity without the law. Obviously, such an anomaly was never contemplated by the legislature. For, if anything is certain, it is that the legislature has attempted to fully control and regulate the use of the highways by auto transportation companies for gain.
I dissent. *Page 631