
    [No. 16991.
    Department Two.
    April 3, 1922.]
    The State of Washington, on the Relation of United Auto Transportation Company, Appellant, v. Department of Public Works et al., Respondents.
    
    Cakbiebs (1) — Regulation—Certificates of Public Necessity— Powers of Department. The department of public works cannot grant a certificate of necessity for a stage route to a certain station, without a hearing, where it was already served by a line running past, and within one hundred feet of the station; in view of the express terms of Rem. Comp. Stat., § 6390.
    Appeal from a judgment of the superior court for Thurston county, Wright, J., entered November 25, 1921, affirming an order of the department of public works granting a certificate of necessity and convenience for the conducting of an auto transportation service.
    Reversed.
    
      Leo Teats, for appellant.
    
      The Attorney General and Raymond W. Clifford, Assistant, for respondents.
    
      
       Reported in 206 Pac. 21.
    
   Mackintosh, J.

— The respondents having granted to George Miller a certificate of necessity and convenience for the conducting of an auto transportation service between Miller Station and Camp Lewis, the relator brought the matter before the superior court, and from a judgment there affirming the order of respondents, has appealed.

The testimony shows that the relator was operating an auto transportation line between Tacoma and Camp Lewis on January 15, 1921, and that by virtue of that fact was entitled to and was granted a certificate covering that route and intermediate points, under ch. Ill, p. 338, Laws of 1921. Miller Station is at the end of the street car line running from Tacoma towards Camp Lewis, and is situated some one hundred yards distant from the Pacific highway over which appellant is operating its busses. In addition to maintaining regular service between Tacoma and Camp Lewis, passing Miller Station at the distance we have mentioned, the respondent also maintains a service consisting of four trips daily over a route from Tacoma to Camp Lewis, by way of American Lake, which passes directly through Miller Station.

It is the relator’s contention that, under § 4 of ch. Ill, p. 341, Laws of 1921, the respondents could not grant a certificate to Miller in the absence of an order, after a proper hearing before the department, directing the relator to provide satisfactory service, and after a refusal of the relator to obey the order of the respondents to provide additional service, or to change the fares charged passengers. In this case the certificate was issued to Miller without, according to the relator, such a hearing, and without the making of any such order. So far as material, § 4 is as follows:

“. . . . The Commission shall have power, after hearing, when the applicant requests a certificate to operate in a territory already served by a certificate holder under this act, only when the existing auto transportation company or companies, serving such territory will not provide the same to the satisfaction of the Commission, . . .” [Rem. Comp. Stat., § 6390.]

As we read it, the contention of the relator must be sustained, if, as a matter of fact, Miller Station is “territory already served by a certificate holder.”

This question of fact must also be resolved in favor of the relator. As we have noted, the relator maintains a service from 5 o’clock in the morning until 1 o’clock of the following morning, daily, passing within one hundred yards of the street car terminus, and four times during the day it goes directly through the station in question. Certainly this would constitute Miller Station “territory already served” within the act.

The questions of whether the service is adequate, or whether the rates charged by relator are proper, are questions which, under the law, the relator is entitled to a hearing upon, and it is only after a hearing and an order entered directing the relator to change its schedule or rates, and a .refusal by the relator to obey that order, that respondents have power to issue a certificate to some other person to then inaugurate a new service.

For these reasons, the judgment of the superior court sustaining the granting of the order of necessity to George Miller by the respondents is reversed and the commission’s order is set aside.

Parker, C. J., Main, Holcomb, and Hovey, JJ., concur.  