Wilmington Transp. Co. v. R.R. Comm'n of Cal.

This is a proceeding inaugurated by petitioner under the provisions of section 67 of the act known as the Public Utilities Act (approved December 23, 1911), [Stats. 1911 (Ex. Sess.), p. 18]), for the purpose of having the lawfulness of an order of the railroad commission of this state inquired into -and determined. The order was one made by the railroad commission in a certain proceeding pending before that body in which the firm of Miller & Donaldson are complainants, and petitioner here is defendant, inaugurated with a view to the proper adjustment and reduction of rates and fares charged by petitioner for the transportation of passengers and freight between the ports of San Pedro and Avalon, both of which are situated in the county of Los Angeles in this state. The order, the validity of which we are asked to inquire into and determine, was one denying a motion to dismiss the proceeding, and requiring petitioner to satisfy the complaint or to answer within ten days. The motion was based upon the claim that the railroad commission had no jurisdiction in the matter.

No suggestion is made by respondent that the law does not contemplate a review by this court of an order of the character here involved, but was intended simply to provide for a review of What might properly be considered a final order or judgment in any proceeding before the commission. The parties have addressed themselves solely to the question they apparently desire to have decided, viz.: the jurisdiction of the commission under such circumstances as here exist. We have not considered at all the question we have just suggested, and this decision is not to be taken as expressing any view thereon.

The petitioner is a California corporation, with its principal place of business in Los Angeles County, in this state. Its occupation or business is that of a common carrier of persons and freight, by sea, between the port of San Pedro and that of Avalon, Santa Catalina Island, both of which ports are, as we have said, in Los Angeles County. The whole of Santa Catalina Island is a part of Los Angeles County. Notwithstanding that the ports are in the same county, a vessel, in passing directly from one to the other, must travel for upward of twenty miles upon the high seas, outside of the territorial jurisdiction of this state. As said in respondent’s

Our law confers upon the railroad commission the power to establish rates of charges for transportation of passengers and freight by railroads 'and other transportation companies. (Const., art. XII, sec. 22.) In section 23 of article XII it is stated that “every common carrier is hereby declared to be a public utility subject to such control and regulation by the railroad commission as may be provided by the legislature,” and the railroad commission is empowered to fix the rates to be charged for services rendered by public utilities, as authorized by the legislature, and it is further provided that “the right of the legislature to confer powers upon the railroad commission respecting public utilities is hereby declared to he plenary and to he unlimited by any provision of this constitution.’’ In section 2, subdivision 1 of the Public Utilities Act, it is provided that the term “common carrier” when used in the act, includes, among others, “every corporation or person . . . owning, controlling, operating or managing any vessel regularly engaged in the transportation of persons or property for compensation upon the waters of this state or upon the high seas, over regular routes between points within this state. ” It is not to be doubted that these provisions purport to confer jurisdiction upon the railroad commission in the matter of fixing the rates to be charged by petitioner for transportation of passengers and freight between San Pedro and Avalon, notwithstanding that the vessels, in passing from one of these ports to the other, must travel in part over the high seas, and outside of the territorial jurisdiction of the state of California.

In view of the admitted facts, it is difficult to find any ground for this claim, except such as is to be found in some language used in certain decisions. In the absence of clear expression to the contrary by the supreme court of the United States on the subject, and treating the matter independent of authority, we should not hesitate to say that no support whatever for the claim is to be found in the language referred to. What possible “commerce with” any foreign nation or nations is involved under the circumstances existing here, even if we treat the word “commerce” as synonymous with “intercourse,” as is claimed by petitioner should be done? All the traffic and intercourse are between two ports in the same county, and state, and no part of the transportation is over the territory of any other state or of any foreign nation or nations, the route so far as it is outside of the state of California being over territory not owned by any particular nation or nations, but open for the purposes of travel and transportation to the use of the people of all nations. Intercourse or commerce with a foreign nation would necessarily seem to imply something more than the mere passing of ships on this common pathway. It would seem to necessarily involve some traffic in the territory of the foreign nation or some movement of persons or property to or from the territory

There is, however, certain language in some of the decisions tending to support petitioner’s view, and there is also one decision of a United States circuit court which appears to be squarely in point.

The principal case relied on by petitioner is that of Lord v. Steamship Co., 102 U. S. 541 , [ 26 L. Ed. 224 ], a case involving the application of the federal limited liability law to contracts of affreightment between two ports of this state. These contracts could not be performed except by going not only out of California, but out of the United States as well. There was really no question of commerce with a foreign nation involved in this case, for the limited liability law was not enacted by Congress under its power to regulate commerce, but was attributable entirely to the exercise of its admiralty and maritime jurisdiction, a power, as said in Lehigh Valley R. R. Co. v. Pennsylvania, 145 U. S. 192 , [ 36 L. Ed. 672 , 12 Sup. Ct. Rep. 806 ], “not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce ; but, in maritime matters, it extends to all matters and places to which the maritime law extends,” even, as was held in In re Garnett, 141 U. S. 1 , [ 35 L. Ed. 631 , 11 Sup. Ct. Rep. 840 ], to a steamer engaged in commerce on a river within a state. It was applicable, of course, to any vessel navigating the high seas, even though the voyage was between ports in the same state, altogether regardless of whether or not the vessel was engaged in commerce with a foreign nation. This was declared in Lehigh Valley R. R. Co. v.

The circuit court case to which we have referred is Pacific Coast S. S. Co. v. Board of R. R. Commissioners, 18 Fed. 10 . This case was decided prior to the decision of the supreme court in Lehigh Valley R. R. Co. v. Pennsylvania, and appears to have been based upon what was said in the Lord case.

Hanley v. Kansas City Southern Railway Co., 187 U. S. 617 , [ 47 L. Ed. 333 , 23 Sup. Ct. Rep. 214 ], was a case in

In The Abby Dodge v. United States, 223 U. S. 166 , [ 56 L. Ed. 390 , 32 Sup. Ct. Rep. 310 ], it was declared that a vessel engaged in gathering sponges on the high seas and without the limits of any state, and transporting the same to the United States, is engaged in foreign commerce, and is therefore amenable to the regulative power of Congress upon that subject, including the power to forbid merchandise carried in such commerce from entering the United States. It appears reasonable enough to conclude that in taking sponges from the high seas and without the limits of any state, and trans-

The case of Cowden v. Pacific Coast S. S. Co., 94 Cal. 470 , [ 28 Am. St. Rep. 142 , 18 L. R. A. 221 , 29 Pac. 873 ], involved a matter of maritime contract.

There is no other case cited requiring notice.

In no case cited except the Lord case is it expressly declared that such commerce as is here involved is ‘ ‘commerce with foreign nations.” In no decision of the United States supreme court has it been squarely decided that a state may not regulate charges for transportation under such circumstances as exist here. Of course, the position of learned counsel for petitioner is that the decisions cited establish the proposition that the mere transportation of passengers and freight constitutes commerce, and that in so far as such transportation is over the territory of another state it is interstate commerce, and in so far as it is over the territory of another nation, it is commerce with that nation. All this may be here assumed to be true. But here the transportation is not over the territory of any other state or any foreign nation, but over the high seas, constituting the common highway of the people of all nations. It does seem to us that under such circumstances, Whether the mere transportation over the high seas be deemed commerce or not, it is not in itself commerce with foreign nations, -and that some other element, such as transportation to a foreign port, or delivery of the goods to a foreign vessel, etc., would be essential to make it commerce with foreign nations. We are unable to see that all transportation over waters outside of the territorial limits of a state is necessarily commerce with foreign nations. In our judgment it may or may not be such, depending on other facts, and we think that the facts in the case at bar are not such as to make it such

The order of the railroad commission is affirmed.

Shaw, J., Lorigan, J., Henshaw, J., and Melvin, J., concurred.