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AGO 1957 No. 125 - October 08, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

COMMON CARRIER PERMITS ‑- MODIFICATION OF PERMIT AUTHORITY BY GENERAL ORDER ‑- RETROACTIVE CONSTRUCTION

A rule of the Washington Public Service Commission modifying a prior definition of "general freight" does not apply to rights existing in permits then outstanding where no such intention is expressed in the rule.

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                                                                 October 8, 1957

Honorable Julia Butler Hansen
State Representative
Cathlamet, Washington                                                                                                              Cite as:  AGO 57-58 No. 125


Dear Mrs. Hansen:

            By letter you have requested the opinion of this office on a matter pertaining to permits issued by the Washington Public Service Commission under Chapter 184, Laws of 1935, as amended.  After noting the promulgation by the commission August 10, 1944, of certain rules and regulations containing, as part of an appendix thereof, a classification of common carriers by commodities transported, you ask:

            ". . . whether the promulgation of such rules and regulations modifies any general freight operating rights of carriers holding 'grandfather rights.'"

            Our answer is that the promulgation of such rules and regulations did not modify any commodity rights under permits then in effect.

                                                                     ANALYSIS

            You observed in your letter of request that there are many holders of permits issued prior to April 10, 1944.  It is such permits that you refer to as "grandfather rights" permits.  The classifications contained in Appendix "A" of the  [[Orig. Op. Page 2]] rules adopted that date, you state in your letter, "modified the then generally understood meaning of 'general freight' as all-inclusive of commodities generally, so that commodities requiring special equipment or service were excluded."  You further state that this has resulted in a misunderstanding as some persons claim holders of general freight permits issued prior to April 10, 1944, cannot haul freight, under general commodity authority, of the so-called special equipment or service type.

            The rules and regulations referred to above were adopted by the terms of General Order M.V. No. 92, issued by the predecessor agency of the commission April 10, 1944, effective May 1, 1944.  Subsequent general orders have not materially affected the rules with which we are here concerned.  These rules provided,inter alia, for the classification of motor carriers by commodity groups.  See Rule 23.  One commodity group was "carriers of general freight."  See Appendix "A."  Carriers of general freight were defined as those "transporting commodities generally, except such commodities as require special equipment or service."  See Appendix "A."

            Assuming general freight authority contained in permits issued prior to the effective date of General Order M.V. No. 92 included the right to transport commodities generally, including those requiring special equipment or service, did the promulgation of such order affect a modification of such permit authority in permits then outstanding?  If the answer be in the affirmative, it must be so on the basis that the order was intended to have retroactive application.  The order and rules in question contain no express statement of such intent; it can only be said the language used raises a doubt as to whether the particular portions in question were meant to be retroactive as well as prospective in application.

            Rules and regulations of a public administrative body such as the Washington Public Service Commission are subject to the same rules of construction as are applicable to statutes.  73 C.J.S., Public Administrative Bodies and Procedures, § 105; 42 Am.Jur., Public Administrative Law, § 101;California Drive‑In Restaurant Association v. Clark, 22 Cal. (2d) 287; 140 P. (2d) 657.

            It is the general rule that statutes have no retroactive effect unless the legislative intent is so expressed therein.  In re Cascade Fixture Co., 8 Wn. (2d) 263, 111 P. (2d) 991.  An exception (not here in issue) to the rule exists where the statute relates to practice, procedure or remedies and does not affect a contractual or vested right.  Nelson v. Department of Labor & Industries, 9 Wn. (2d) 621, 115 P. (2d) 1014.  InGillis v. King County, 42 Wn. (2d) 373, 255 P. (2d) 546, the court stated further that the application of this general  [[Orig. Op. Page 3]] rule of construction is not limited to cases where the existing right is a vested right.  That authority flowing from permits issued by the commission to common carriers is a right, if not a vested right.  SeeTaylor-Edwards, etc. Co. v. D. P. S., 22 Wn. (2d) 565, 157 P. (2d) 309.

            An analysis of General Order M.V. No. 92 and the rules adopted thereby fails to disclose, in so far as rights under permits then existing as distinguished from procedural matters are concerned, any intent to make the same applicable to commodity authority or rights in permits then outstanding.  The rules of statutory construction cited above, being equally applicable to rules of the commission, lead to the conclusion that the adoption of the rules did not modify commodity rights then existing in any permit then in effect.  This is not to say, however, that the commission lacks authority to adopt classification rules following appropriate statutory administrative procedures which may affect permit rights outstanding at the time such a rule becomes effective.

            It should be noted that our conclusion stated above applies to the factual situation as presented.  Whether particular motor carrier permits outstanding prior to the effective date of General Order M.V. No. 92 did or did not contain authority to transport commodities requiring special equipment or service is a matter upon which we are not requested to express our opinion.  We do advise, however, that as to permits then outstanding which did contain such authority, such authority was not revoked or modified by the order in question.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General


FRANK P. HAYES
Assistant Attorney General

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