OPINIONS

OLYMPIA, WN., Jan. 9, 1913.

Public Service Commission, Olympia, Wn.

GENTLEMEN: You have requested an opinion of the attorney general upon the following facts:

The Spokane & Inland Empire Railroad Company operates an electric railway system from Spokane through the socalled Palouse Country and sells electric power to numerous persons along its route to be used for irrigation and similar purposes. One of the consumers complained to the commission concerning his rates and service and the commission found on investigation that the company had filed no tariff showing its power rates. Inquiry was made of the company concerning this supposed failure to comply with the requirements of the public service commission law, and in reply to the commission's inquiry the counsel for the company wrote a letter reading as follows:

"Replying to yours of the 13th inst. requiring the Spokane & Inland Empire Railroad Company to file with the commission tariffs and copies of contracts for electric and power service, would say that the company is not, so far as its power business is concerned, engaged in a public service business. The power which it sells is furnished to private consumers for their private needs, and under the decision in the White River Power Company case, the business is entirely a private business. This being true, that portion of its business does not fall within the jurisdiction of the public service commission. Since it is not engaged in the public service business with respect to its power service, it has never made any tariffs, and, of course, has not filed its contracts, which are private contracts, with the commission."

You ask to be advised as to the jurisdiction of your commission over electric power rates, service, etc., in view of the objection made in the letter quoted.

Section 8 of the public service commission law (chap. 117, Laws 1911) contains the following definitions:

"The term 'electric plant,' when used in this act includes all real estate, fixtures and personal property operated, owned, used or to be

used for or in connection with or to facilitate the generation, transmission, distribution, sale or furnishing of electricity for light, heat, or power for hire; and any conduits, ducts or other devices, materials, apparatus or property for containing, holding or carrying conductors used or to be used for the transmission of electricity for light, heat or power."

"The term 'electrical company,' when used in this act, includes any corporation, company, association, joint stock association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever (other than a railroad or street railroad company generating electricity solely for railroad or street railroad purposes or for the use of its tenants and not for sale to others), and every city or town owning, operating or managing any electric plant for hire within this state."

Other portions of the law, and particularly articles III and IV, provide in detail for the regulation and supervision of electric plants and electrical companies, treating all such plants and companies as engaged in a public service with respect to their entire business, including the furnishing of power to pri

vate consumers.

The objection made directly challenges the constitutionality of the public service commission law in so far as it purports to subject to the jurisdiction of the commission the business of electrical companies in furnishing power for what are designated commercial uses as distinguished from the business of furnishing electrical power for use in operating street railways and for municipal lighting.

The "White River Power Case" cited in the letter quoted is State ex rel. Tacoma Industrial Company v. White River Power Company, 39 Wash. 648.

The other decisions of the supreme court of this state bearing on the question are: State ex rel. Harlan v. Centralia-Chehalis Electric Ry. & Power Co., 42 Wash. 632; State ex rel. Harris v. Superior Court, 42 Wash. 660; State ex rel. Harris v. Olympia Lt. & Pr. Co., 46 Wash. 511; State ex rel. Tolt Power & Transportation Co. v. Superior Court, 50 Wash. 13; State ex rel. Shropshire v. Superior Court, 51 Wash. 386; State ex rel. Dominic v. Superior Court, 52 Wash. 196; City of Tacoma v. Nisqually Power Co., 57 Wash. 420.

A review of the cases in some detail is necessary to a clear understanding of the law relative to the question submitted.

State ex rel. Tacoma Industrial Co. v. White River Power Co., 39 Wash. 648, was an action to condemn certain water rights for the purpose of establishing a hydro-electric plant, the product of which the condemning party intended to sell generally in the market for any purpose to which the purchasers might see fit to devote it. The condemnation proceeding was resisted on the ground that the use of electric power for commercial uses was not a public use and that, consequently, the power of eminent domain could not be exercised in aid of the enterprise. The supreme court sustained this contention after an exhaustive review of the authorities on the subject. In concluding its opinion the court says:

"From a full review of all the authorities, we are convinced that the respondent is not a public service corporation, and that the use to which it intends to apply the property it now seeks to acquire is not a public use, within the meaning of the Constitution and laws of this state. We do not mean to say that the right of eminent domain can, in no case, be extended to a corporation organized for the purpose of generating and transmitting electricity for power and other purposes. But before this can be done, public necessity must require it, and the right of the public to the use and enjoyment of the property must be regulated, guaranteed, and safeguarded by proper legislation."

State ex rel. Harlan v. Power Company, 42 Wash. 632, was a condemnation proceeding in which the condemning party sought to acquire certain water rights for the purpose of generating electricity to be used in operating a street railway system. The use of electric power for this purpose was held to be a public use, and the railway company was permitted to acquire the property by condemnation.

State ex rel. Harris v. Superior Court, 42 Wash. 660, was a condemnation proceeding brought to acquire water rights for the purpose of generating electricity to be used in operating a street railway system and a public lighting plant and also to be sold to the public generally. The court held that the use of electric power to operate street railways and for municipal lighting was a public use but denied that the genera

tion of power to be sold generally in the market was a public The condemning party was not permitted to proceed with this action.

use.

State ex rel. Harris v. Olympia Light & Power Co., 46 Wash. 511. This is the same action involved in the opinion last cited. After the decision in the case just mentioned, the condemning party amended its petition by which it confined itself to the right to use the power which it proposed to generate for the operation of its street railway line and for municipal lighting purposes only. The supreme court held that the amended petition avoided the objections stated in the preceding case and permitted the property to be condemned for the limited uses stated in the amended petition.

State ex rel. Tolt Power Co. v. Superior Court, 50 Wash. 13. In this case the appealing party asked the court to overrule its decision in State ex rel. Tacoma Industrial Co. v. White River Power Co., 39 Wash. 648, and in State ex rel. Harris v. Superior Court, 42 Wash. 660, but the court said that the conclusions therein announced were reached only after extended argument and full consideration and refused to review or reconsider the questions therein decided.

State ex rel. Shropshire v. Superior Court, 51 Wash. 386, was an action to condemn certain lands and water rights for the surpose of building a water system to supply the city of Raymond. After discussing other questions, the court says (page 393):

"It is next argued by the claimant that condemnation should be denied to the respondent, for the reason that some of the declared objects of respondent's organization as herein before stated are purely private in their nature, and call for furnishing water to private persons and corporations for private purposes only. The principal argument upon this point is to the effect that the respondent proposes to furnish water to private persons and corporations to be used in boilers to generate steam for sawmills and shingle mills for the manufacture of lumber and shingles. It is contended by the claimant that such a use of the water would be private within the following decisions of this court: Healy Lumber Co. v. Morris, 33 Wash. 490; State ex rel. Tacoma Industrial Co. v. White River Power Co., 39 Wash. 648. In this view of claimant's counsel we concur. The respondent argues that such