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AGLO 1978 No. 34 - October 27, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

COMMON CARRIERS ‑- AUTO TRANSPORTATION COMPANIES ‑- SCOPE OF VAN POOL EXEMPTION

(1) Under RCW 81.68.010(3), as amended by § 1, chapter 121, Laws of 1975-76, 2nd Ex. Sess., a van pool operator would be considered to be in competition with or infringing upon the service of an existing auto transportation company if its van pool were to travel the same route and/or serve the same termini as that company and were to solicit passengers who would otherwise have utilized the services thereof.

(2) Consideration of several related factual situations involving the scope of the van pool exemption and the loss thereof by reason of competition between a van pool operation and an existing auto transportation company.

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                                                                October 27, 1978

Honorable Max E. Benitz
State Senator, 8th District
Route 2, Box 181
Prosser, Washington 99350                                                                                                               Cite as:  AGLO 1978 No. 34

Dear Senator Benitz:

            By letter previously acknowledged you have requested an opinion of this office on several questions relating to what you have described as the "vanpool exemption" from the definition of "auto transportation company" in RCW 81.68.010(3);i.e., so much of that definition as was added to the statute by § 1, chapter 121, Laws of 1975-76, 2nd Ex. Sess. and reads as follows:

            "The term 'auto transportation company' shall not include, nor shall the provisions of this chapter apply to, any operation whereby passengers are transported between their places of abode, or termini near such places, and their places of employment, in a motor vehicle with a seating capacity including the driver not exceeding fifteen persons, in a single, daily  [[Orig. Op. Page 2]] round trip where the driver himself is also on the way to or from his place of employment:  PROVIDED, That said transportation or operation shall not compete with nor infringe upon service of an existing auto transportation company certificated under this chapter."

            We will state your specific questions along with our answers thereto within our analysis below.

                                                                     ANALYSIS

            Question (1):

            First you have asked:

            "In an area served by privately-owned auto transportation companies certificated under Chapter 81.68 RCW, what actions by individuals participating in a vanpool, or actions of an employer or other person promoting the concept of vanpooling, would be deemed to constitute 'competition' or 'infringement' upon service of an existing auto transportation company, such that the provisions of Chapter 81.68 RCW would become applicable to the participating individuals or the employer?"

            As you have noted, the answer to this question depends on the meaning to be given to the words "compete" and "infringe" in the proviso to RCW 81.68.010(3),supra, as amended.  Once again, that proviso‑-through the operation of which an otherwise exempt "vanpool" will become, instead, a regulated "auto transportation company"1/ reads as follows:

            ". . . PROVIDED, That said transportation or operation shall not compete with nor infringe upon service of an existing auto transportation company certificated under this chapter."

            It is a general rule of statutory interpretation that exceptions to general provisions are to be narrowly construed.  State v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977).  Provisos are, for that reason, also to be strictly construed.  State v. Wright, 84 Wn.2d 645, 529 P.2d 453 (1974).  However, the basic purpose of all statutory interpretation is to ascertain and give effect to the intent of the legislature.  State v. Wright,id.;Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965).  Furthermore, in ascertaining legislative intent the words of a statute are to be given their common ordinary meaning in the absence of some special statutory determination to the contrary.  New York Life Insurance Co. v. Jones, 86 Wn.2d 44, 541 P.2d 989 (1975).  Here, to "compete" means "to seek or strive for something . . . for which others are also contending . . ." and to "infringe" connotes encroachment or trespass upon the rights of another.  See,Webster's Third New International Dictionary (1968) at p. 463 and p. 1161.  Finally, the terms of the proviso, as thus defined, are to be construed in light of the remainder of the statute.  State v. Wright,supra.

            An auto transportation company is essentially one which transports passengers over the public highways "between fixed termini or over a regular route . . ." RCW 81.68.010(3), supra.  Therefore, in order to compete with or infringe upon the service of an existing auto transportation company a van pool operator would first have to be serving the same termini and/or route served by an auto transportation company.  And secondly, since the apparent purpose of the proviso is to protect the rights of certified auto transportation companies, a van pool operator in order to be competing or infringing would have to be soliciting passengers who would otherwise have utilized the services of the existing auto transportation company.

            Thus, our answer to your first question is that a van pool operator would be considered to be in competition with or infringing upon the service of an existing auto transportation  [[Orig. Op. Page 4]] company if the van pool were to travel the same route and/or serve the same termini as that company and were to solicit passengers who would otherwise have utilized the services thereof.2/

            Question (2):

            Your second question asks:

            "Would a vanpool organized among employees of a firm be considered in competition with or infringing upon service of a certificated carrier merely because the certificated carrier provides service capable of transporting said employees to and from work?"

            Such a van pool would not necessarily be considered to come within the terms of the proviso to the van pool exception merely because an existing auto transportation company provides service capable of transporting the same employees to and from work.  The answer to this question, instead, would turn on a factual determination as to whether the van pool operation served the same termini and/or route and attracted passengers who would otherwise have utilized the services of the auto transportation company.

            Question (3):

            Next you have asked:

            "Would your answer to question No. 2 be any different if the employer or a group of  [[Orig. Op. Page 5]]

employers promoted the concept of vanpooling and made available to interested employees lists of names of other employees who had indicated an interest in the concept of vanpooling?  If so what would be your opinion?"

            Our answer to your second question, supra, would not necessarily be different simply because the employer or a group of employers so promoted the concept of van pooling and made available to interested employees lists of names or other employees who had indicated an interest in the concept of van pooling.  If the van pooling operation itself is not subject to regulation, those promoting the the concept and coordinating interested parties would not make those operations subject to regulation.  Stickler v. Schaaf, 199 Wash. 372, 91 P.2d 1007 (1939).  If, however, the van pool operation is found to be subject to regulation and to have been operating without a certificate as required by RCW 81.68.040, those promoting that operation could be considered to have aided and abetted a violation of chapter 81.68 RCW.  See Strickler v. Schaaf, id.; RCW 81.04.390.

            Question (4):

            Your fourth question asks:

            "Would your response to question No. 2 be changed if the employer or a third party promoted the concept of van pooling and provided (either at no cost or on a cost reimbursable basis) the vans to be utilized in commuting back and forth to work?  If so, what would be your response?"

            A van pool operation would not necessarily be subject to regulation under the assumptions posed in this question either‑-for the same reasons discussed in our response to question (2).  However, it would seem obvious that if several van pool operations were being conducted by a single employer there would be an increase in the likelihood of a determination that an existing auto transportation company was being injuriously affected.

            Question (5):

            Finally you have asked:

            "If a certificated carrier holds a certificate issued under Chapter 81.68 RCW under which it could legally provide service capable of transporting individuals to and from their places of employment but is not presently operating buses  [[Orig. Op. Page 6]] serving such areas then is it correct to take the position that there are no actions by an individual involved in a van pool, or an individual or employer promoting vanpooling which would constitute infringement upon or competition with the services of the certificated carrier?  If you believe some activities would still be considered infringement upon or competition with the certificated carrier, please state what those activities would be."

            From the terms of the proviso it appears obvious that the legislature intended it to operate only when the area in question was actually being served by an existing auto transportation company.  Clearly, there could be no competition with nor infringement upon the service of an auto transportation company which was not currently engaged in operations.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


JOHN W. HOUGH
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Defined in the first paragraph of RCW 81.68.010(3) to mean

            ". . . every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, owning, controlling, operating or managing any motor propelled vehicle not usually operated on or over rails used in the business of transporting persons, and baggage, mail and express on the vehicles of auto transportation companies carrying passengers, for compensation over any public highway in this state between fixed termini or over a regular route, and not operating exclusively within the incorporated limits of any city or town.   . ."

            See also, RCW 81.68.020-81.68.080 which set forth the details of how such companies are regulated under the jurisdiction of the State Utilities and Transportation Commission.

2/This conclusion is by analogy further supported by previous Washington cases in which noncertificated carriers have been enjoined from competing with existing auto transportation companies.  Statutes are deemed adopted with a full view to relevant judicial precedent.  Leonard v. The City of Bothell, 87 Wn.2d 847, 557 P.2d 1306 (1976);Miller v. Paul Revere Life Ins. Co., 81 Wn.2d 302, 501 P.2d 1063 (1972).  When confronted with nonregulated carriers travelling the same route as a certificated auto transportation company and soliciting passengers who otherwise would have used the services of that company, the courts have held the nonregulated operators to be subject to injunction as being in competition with the auto transportation company and infringing upon its exclusive right to serve those routes.  See,e.g.,Davis & Banker v. Nickell, 126 Wash. 421, 218 Pac. 198 (1923);Cook v. Lawwill, 127 Wash. 92, 219 Pac. 864 (1923); State ex rel. Savage v. Dean, 129 Wash. 584, 225 Pac. 656 (1924).

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