In the early part of its opinion, the court decides that one who tows logs and lumber on the waters of Puget Sound is engaged in the business of a common carrier. If so, it seems to me that the argument should have stopped there, for everyone will admit that the state has a right to fix rates to be charged by a common carrier. But I have seriously doubted the correctness of the conclusion reached by the court. At common law, the business of towing lumber and other products was regarded as a private enterprise, and not subject to the strict rules applicable to a common carrier. A common carrier is such only because of the nature of the business done and the services rendered. The legislature may not make one a common carrier by simply declaring him to be such. These towboats have no fixed schedule, do not operate over roads built and maintained by the *Page 616 public, and have no termini. They serve only a very small minority of the public. The nature of their business makes it impossible for them to act for more than one person at a time. They come and go whenever and wherever business calls them. They operate only at the request of one person. They go to the business, and not the business to them. On the other hand, to be fair in our argument, it should be conceded that they are engaged in transportation, and that that business, generally speaking, but not always, constitutes one a common carrier. They also use the public waters. I concede that these are elements from which it can be argued, with some show of reason, that they are common carriers.
But the court asserts that, regardless of what these boats might be in the absence of legislation, the legislature of this state has seen fit to make them common carriers. It is true that the act includes vessels and defines towboats as vessels, but it undertakes to regulate them only while engaged in the "public service." This, it seems to me, is shown by the act, which defines what a common carrier is, and says that it includes all steamboats operating "for public use." But I shall not seriously quarrel with the court's determination that a tower of logs or lumber is a common carrier. I admit the question is not without doubt. If this were all there was in the opinion, I might, in aid of uniformity, be able to resolve my doubts in favor of the view taken by the majority of the court. But I am more deeply interested in another feature of the opinion, and that is the regulation of private property and business.
After holding that the business of towing is that of a common carrier, the court proceeds to hold, as I read the opinion, that the state may regulate the charges to be made for services by what has heretofore been *Page 617 regarded as a purely private business, provided that business"is affected with a public interest." This, to my mind, is a very important and far-reaching decision. If I remember my history correctly, it is stated that many of our forefathers came to our shores in order that they might have freedom of private contract and be able to transact their private businesses without interference from the sovereign power, except as that business might be affected by the police power of the state. These ideas were written into the Federal constitution. Thenceforward this government stood for the rights of the individual as distinguished from paternalism in government, and the courts prided themselves in their effort to uphold those rights. I am afraid, however, that this portion of our governmental structure is beginning to slip from its true foundation.
If private business is ever to be regulated by the state, then I do not like the rule that it may be regulated, when it "is affected with a public interest." It seems to me that the measure is too uncertain, too elastic, and too embracing. Everything the individual does affects, directly or indirectly, the public, and therefore what he does is "affected with a public interest." The people of a given community are more deeply and closely affected by the charges made by the local grocer for his products, by the clothiers, by the butcher shops, by the saw mills, by every person who produces building materials or handles the necessities of life, than with the charges made by one who tows logs or lumber on Puget Sound. Under this rule of public interest, where are we to stop? The opinion says "that the cost of transporting logs would be reflected in every foot of lumber," and for that reason the business "is affected with a public interest." Certainly not more so than the charges made by the grocer, for they affect every man, woman and child in the community, *Page 618 and the wage of every laborer must be based thereon. I do not see why the rule laid down by the court would not justify the state in fixing the price of coal, wood, logs, lumber, and all the necessities of life; and thus would the rights of private property and business be wiped out. Again, I ask, where are we to stop under this rule? When may a private business be considered as "affected with a public interest," and when not? It is my inability to answer these questions that leads me to doubt the wisdom of the rule laid down by the court. I am afraid we are leaving the main highway and are taking a side road, which must eventually lead only into someone's private barnyard.
It is my present idea that the only safe rule is that the state may regulate charges and rates only where the business sought to be regulated has received from the state some special benefit or privilege that is not possessed by others; as, for example, where the owner of the business has been given the power of eminent domain, a franchise, a license, an exclusive right, the privilege of using the public grounds or public highways, and probably there could also be regulation of those who hold themselves out as common carriers and willing, as such, or otherwise, to serve the public. In these instances the state has given something of value which belonged to the public, and that justifies it in reserving the right to regulate the business for the benefit of the public.
I concede that the rule suggested by me would prohibit charge or rate control by the state of all businesses which are commonly called private; but may we not confidently rely on competition to protect the general public from any serious detriment?
Of course, I am not here taking into consideration the right of the state to regulate private business and property by virtue of its police power, a right which *Page 619 it had before, and has independent of, any constitutional provision. It may be that under this power the state may regulate the prices of a strictly private business which has become, or threatens to become, a monopoly.
TOLMAN, C.J., and MACKINTOSH, J. concur with BRIDGES, J.