The majority opinion reaches its conclusion through a contemporaneous construction of Rem. Rev. Stat., Vol. 7A, § 6382-2a. That construction is founded upon (1) a judicial discovery in the statute of a legislative intent to "foster a stable rate structure free of discrimination for the shippers of the state of Washington," and (2) a judicial projection of that intent into a general application of the section to all "out-of-line charges, whether too high or too low."
I am not in accord with that construction of the statute. It seems to me that the legislature enacted § 6382-2a for the specific purpose of taking contract carriers out of that category which otherwise would compel them "to dedicate their property to the business of transportation and [there-by] subject themselves to all the duties and burdens imposed by the act upon `common carriers'," but at the same time to make certain that such exemptions or privileges did not permit contract carriers toundercut rates, fares, or charges regularly established by the department for such transportation services rendered by other types of *Page 579 carriers. In short, the legislative purpose in this latter respect was, by the prevention of undercutting, to preserve the integrity of rates regularly established by the department for carriers other than contract carriers. Obviously, such established rates for common carriers would not be jeopardized by higher rates charged by contract carriers. The reasoning of the majority opinion would compel a uniform rate to be charged by both common carriers and contract carriers, which is contrary not only to the provisions of § 6382-19, but also to the recognized settled departmental practice with reference to differing types of transportation service.
In passing, I will also say that in my opinion the fact that the department in 1941 (which was after the rendition of the services here involved) established a motor-borne through rate at less than the combined rate of fifty-eight cents per hundred pounds, has nothing whatever to do with this case. It is neither a fact, nor evidence of any fact, involved in the situation presented here.
My concurrence in the result obtained in the majority opinion rests upon a ground which, though not specifically adopted by the majority, is nevertheless inherent, I think, in its opinion. It is clear, not only from the majority opinion, but from the entire record as well, that this case involves no element of fraud, secret rebates, bad faith, or unfair practice. The respondents previously had been shipping their box shooks from Raymond to Yakima by rail, upon the established common carrier rate of twenty cents per hundred pounds. Appellant solicited the business of the respondents and obtained it upon the basis of that rate. He was content to haul the freight upon that consideration, and it is clear from the record that it was solely for his benefit that the contract was made. Respondents gained nothing by way of a saving in transportation charges, for they had access to the railroad upon an established rate of twenty cents per hundred pounds. Quite likely respondents were willing to patronize appellant simply because he was a resident of the vicinity, and they *Page 580 would thus be supporting a home industry. Concededly, both parties were then acting in entire good faith, upon the assumption that the charge was legally proper, and without any thought whatever of violating or evading any law of the state of Washington.
Now, after the service has been rendered, after the agreed charge has been paid, appellant commences this action (at the instance of the public service department) to recover a charge almost three times as great as the agreed rate, which formerly was satisfactory to him. To permit him to recover, under the admitted facts in this case, would, in my opinion, be unconscionable and outrageously wrong. Its only possible justification is an alleged public policy protective of the public welfare in the matter of the stability of transportation rates.
The meaning of the term "public policy" is at best vague and variable, and there is no fixed rule by which to determine what it is or what contracts are repugnant to it. A principle of public policy at one time or under one set of circumstances may at another time or under different circumstances be the reverse. In fact, the question of public policy is as broad and, at the same time, as indefinite as the question of fraud, and the propriety of its application in a particular instance is addressed to the good common sense of the court. It certainly is not the policy of the law or of the public to encourage an unconscionable recovery upon a contract made and fully executed in good faith, nor will such recovery tend to protect the public welfare, sound morality, or civic honesty. Least of all will it tend to promote respect for the law.
I think a judgment of affirmance in this case should rest upon a holding that under the admitted facts the appellant is led to seek an unconscionable return, contrary to the terms of his contract and subversive of the fundamental principle of common honesty in business transactions.
I recognize the fact that the appellant is not altogether a willing plaintiff in this action, and my conclusions are addressed *Page 581 more specifically to the results of a permissible recovery than to any motives which might have prompted or compelled the appellant to institute the suit.
I concur in the result.