thorizing the commission to provide for joint rates and through routes on railroads. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 12, 14-20; Dec. Dig. § 10.*] others, to review orders of the commission. From a decree sustaining the orders, the relators appeal. Affirmed. 4. CONSTITUTIONAL LAW (§ 298*)-DUE PRO- F. M. Dudley and F. V. Brown, both of SeCESS OF LAW-EMINENT DOMAIN (§ 2*)-attle, for appellants. W. V. Tanner and SteTAKING OF PROPERTY WITHOUT COMPENSA-phen V. Carey, both of Olympia, for respondTION-REGULATION OF RATES. Since railroads voluntarily devote their ents. property to public use, they are public corporations subject to special limitations by law as to rates and the manner of the performance of their public duties, and the regulation of rates by the state is not a taking of property without due process of law, or a taking or damaging of property without compensation. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 847; Dec. Dig. § 298;* Eminent Domain, Cent. Dig. §§ 3-12; Dec. Dig. § 2.*] MORRIS, J. It is sought by this appeal covering consolidated cases to reverse the decree of the lower court sustaining an order of the Public Service Commission establishing joint rates between South Tacoma and points on appellants' lines, and a second order dividing revenues arising from the joint rates thus established between the participat ure to comply with the first order and adjust their tariffs in conformity with the conclusions first reached by the commission. 5. CARRIERS (§ 10*)—CONSTITUTIONAL LAW (§ing carriers, made after the appellants' fail297*)-EMINENT DOMAIN (§ 2*)-DUE PROCESS OF LAW-TAKING OF PROPERTY WITHOUT COMPENSATION-REGULATION OF RATES Public Service Commission Act (Laws 1911, c. 117, § 57), authorizing the commission to order railroads to establish through routes, and empowering the commission to establish joint rates and to order that car load freight shall be carried by the different railroads without being transferred from the originating cars, empowers the commission to order an interchange of cars between connecting carriers when the rates in force between given points are excessive, and when there is no satisfactory through route and joint rate, and when the public necessities demand the establishment of a joint rate and through route; but before the making of the order the commission must make rules for the expeditious and safe return and proper compensation for the cars so employed, and the provision so construed does not take property without due process of law, in violation of the fourteenth amendment of the federal Constitution, and does not take or damage private property without compensation, in violation of Const. art. 1, § 16; and an order of the commission establishing a joint rate for a given service and apportioning the rate between connecting carriers, leaving to them the practicable way of complying with the order, either by sending the loaded cars through to their destination or transferring the load from the cars of one carrier to those of the other at the connecting point, is not invalid as beyond the power of the commission to make. South Tacoma is the name of a station located at the south end, but within the corporate limits of the city of Tacoma, and within its contributing territory are a number of manufacturing establishments requiring the shipment of their products in car load lots to points on appellants' lines. The only railway line reaching this territory is the Northern Pacific. The Great Northern, under a contract with the Northern Pacific, has acquired the privilege of running its trains between Tacoma and Portland over the line of the Northern Pacific, passing through South Tacoma, but, under this arrangement with the Northern Pacific, has acquired no rights for the transaction of business at South Tacoma, so that freight from and destined to points on the Great Northern would be hauled between Tacoma and South Tacoma by the Northern Pacific and charged for as local freight. The Chicago, Milwaukee & Puget Sound Railway Company has no arrangement with the Northern Pacific for the use of tracks at South Tacoma, but has a [Ed. Note.-For other cases, see Carriers, physical connection with the tracks of the Cent. Dig. § 12, 14-20; Dec. Dig. § 10;* Con- Northern Pacific at Tacoma, and shipments stitutional Law, Cent. Dig. §§ 832-834; Dec. to and from points on its line were comDig. § 297;* Eminent Domain, Cent. Dig. §§ 3-pelled to pay the local traffic between Taco12; Dec. Dig. § 2.*] 8. CARRIERS (§ 18*)-ESTABLISHMENT OF RATES -FINDINGS OF PUBLIC SERVICE COMMISSION -CONCLUSIVENESS. ma and South Tacoma. It was found by the commission that the terminals of these several lines entering Tacoma were centrally loThe findings of the Public Service Com-cated, and that the territory served by the mission created by Public Service Commission South Tacoma station was no further disAct (Laws 1911, c. 117), so far as they establish rates for railroads, will not be disturbed by the courts unless they are made arbitrarily and in disregard of the material rights of the parties. [Ed. Note.-For other cases. see Carriers. Cont. Dig. §§ 13, 16-18, 20, 24; Dec. Dig. § 18.*1 Department 2. Appeal from Superior Court, Thurston County; John R. Mitchell, Judge. Actions by the state of Washington on the relation of the Great Northern Railway Company, and on the relation of the Chicago, Milwaukee & Puget Sound Railway Company, against the Public Service Commission and tant from the Tacoma terminals than other portions of the city of Tacoma included within the switching district of Tacoma, and the freight rate to and from Tacoma. The first order complained of was made November 18, 1911, and directed that joint rates should be put in force between the Northern Pacific and appellants, under which car load lots would be carried to and from South Tacoma and points on the lines of appellants at the same rates charged for like commodities under the Tacoma tariff, in cases where, under their tariff, appellants absorbed the switch For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes ing charges to and from industries on North-, within which it may be exercised, upon any ern Pacific tracks at Tacoma; and, in cases order of the commission which is deemed where such switching charges were not ab- contrary to law, "for the purpose of having sorbed, a charge of not to exceed $5 per its reasonableness and lawfulness inquired car was to be added to the joint rate; pro- into and determined." That the Legislature viding, however, that none of the joint has a right to provide for the review of any rates ordered should apply between South order must be admitted, and when it has in Tacoma and Northern Paciuc and Great express terms done so, it is not for the courts Northern and Northern Pacific and Mil- to say that such review should be, not from waukee competitive points. Under this or any order as in the language of the act, but der the railway companies were given ten only from any final order. This would mean days after service of the order upon them to a judicial amendment of the act which, comply with its terms and agree upon the doubting our power, we are not disposed to joint rates, it being further provided that, in make. case of their failure so to agree, the Public Service Commission would itself by a supplemental order establish such rates, and fix the division between the respective carriers. On December 20, 1911, the carriers having failed to agree upon a division of the joint rates, the commission notitied them that a further hearing would be had on January 3, 1912, to hear evidence touching the proper division of the joint rates. This hearing was had on January 8th, and on the same day the commission made its order dividing the joint rates by giving to the Northern Pacific two cents per hundred pounds with a minimum of $6 per car, and a maximum of $10 per car, and the balance of the rate was to be apportioned to the Great Northern nd Milwaukee. These are the orders attacked by the appeal. They apply, of course, only to traffic wholly within the state. [2] At all events, the order of November 18th was a final order to all intents and purposes. It fully covered and disposed of the matter before the commission. It required nothing to make it effectual, and had it been complied with by appellants would have ended the matter. That it did not end the matter was not because of its lack of finality, but because, appellants having failed to observe its mandate, subsequent action to enforce it became necessary on the part of the commission. Suppose a court of equity should in its decree order the execution and delivery of a deed providing that, if the order was not complied with in ten days, a supplemental decree would be issued, directing such execution by a commissioner then to be appointed, could it be contended that the decree did not become final until the supplemental decree was entered? Or that the time for ap plemental decree and not from the entry of the original decree? Section 86 of the Public Service Commis-peal began to run from the entry of the supsion Act (page 596, Laws 1911) provides: "Any complainant or any public service company affected by any order of the commission, and deeming it to be contrary to law, may, within thirty days after the service of the order upon him or it, apply to the superior court of the county in which such proceeding was instituted for a writ of review, for the purpose of having its reasonableness and lawfulness inquired into and determined." [1] The writs of review in these cases were sued out in the lower court within 30 days after the service of the order of January 8, 1913, but not within 30 days after the service of the order of November 18, 1911. The state thereupon moved the lower court to quash the writs in so far as they sought to review the order of November 18, 1911, upon the ground that they had not been sued out within 30 days after the service of the order, which motions were granted. This ruling is sustained. Appellants argue that the words "any order," as used in section 86, should be interpreted to mean only final orders. This contention is disposed of in State ex rel. Railroad Commission v. O. R. & N. Co., 68 Wash. 160, 123 Pac. 3, where it was held that the provisions of this section are so plain as to admit of no argument as to their meaning. The Legislature has not limited the right of review to final orders, but [3] It is next urged that the commission has no power to apportion the joint rates between the carriers. As the only power vested in the commission in this regard appellants cite section 83 of the act, providing that when any order of the commission shall require joint action by two or more public service companies, the order shall specify that it shall be done at their joint cost, and if within a given time the companies fail to apportion such costs between themselves, the commission shall have authority after hearing to enter an order fixing the proportion of such cost to be borne by each company. Counsel for appellants argue that the only authority conferred upon the commission by this section is to apportion costs. That may be granted. This section does not touch the question at issue, since it manifestly relates to the cost or expense of complying with an order of the commission requiring joint action on the part of two or more public service corporations. This section plainly refers to some physical connection between the respective companies. It speaks of operation, maintenance, and joint service, thus clearly indicating that something other than the fixing of rates was in the legislative mind. [4, 5] There was no necessity of again taking up the question of railway rates and the mission in this regard, for the legislative upon by appellants as sustaining their conwill in this particular had been fully writ- tention that rolling stock is property within ten in section 57, providing: "Whenever the meaning and protection of the federal the commission shall be of opinion, after and state Constitutions, and that any rehearing had upon its own motion or upon quirement by the state that one carrier turn complaint, that the rates and charges in force over such property for the use of another is over two or more railroads, between any two a taking. We cannot find that this last quespoints in the state, are unjust, unreasonable tion is involved in this case, as the orders or excessive, or that no satisfactory through appealed from make no reference to any inroute or joint rate exists between such points, terchange of cars; nor is there any requireand that the public necessities and conven- ment that one of these carriers shall turn ience demand the establishment of a through over any portion of its rolling stock for the route and a joint rate between such points, use and benefit of the other. The orders esthe commission may order such railroads to tablish a joint rate for a given service, and establish such through route, and may estab- apportion that rate between the connecting lish and fix a joint rate which will be fair, carriers, leaving to the carriers the convenjust, reasonable and sufficient, to be followed, ient and practiable way of complying with charged, enforced, demanded and collected in the order, either by sending the loaded cars the future, and the commission may order through to their destination or transferring that car load freight moving between such the load from the cars of one carrier to those points shall be carried by the different of the other at the connecting point. The companies, parties to such through route and order applies to rates only, and makes no joint rate, without being transferred from reference to service in the sense spoken of. the originating cars. In case no agreement So far, however, as section 57 confers power exists between such railroads for the inter- upon the commission to order an interchange change of cars, then the commission, before of cars between connecting carriers in case making such order, shall be empowered to, no agreement for such interchange exists beand it shall be its duty to, make rules for tween the carriers, it will be noted that this the expeditious and safe return and proper power is to be exercised (1) when the rates compensation for the cars so loaded by the in force between the given points are unjust company or companies receiving the same." and excessive, (2) when there is no satisfacAppellants contend that this section is vio- tory through route and joint rate, (3) when lative of the fourteenth amendment of the the public necessities and convenience defederal Constitution in that it is a taking of mand the establishment of a joint rate and property without due process of law, and through route, and (4) when, before the maklikewise infringes upon section 16, art. 1, of ing of such order, the commission shall have the state Constitution, prohibiting the taking made rules and regulations for the expedior damaging of private property for public tious and safe return and proper compensaor private use without compensation first be- tion for the cars so employed. ing made. We cannot follow appellants' argument in support of this contention, as we fail to see how this section in any sense provides for a taking or damaging of private property for public use, or appropriates property without due process of law. Appellants, by virtue of their public character, and in order to carry out the purpose of their organization, have voluntarily devoted all their property to public use, and for this reason it has always been regarded that public service corporations of this character are subject to special limitations by law, as to their rates and charges and as to the manner of the discharge of their public duties. The regulation of rates by the state has never been regarded as a taking of property without due process of law, nor as a taking or damaging without compensation. The constitutionality of statutes delegating power to public service companies to establish and regulate joint rates of independent and connecting common carriers is expressly established in Minneapolis & St. Louis R. Co. v. Minnesota, 186 U. S. 257, 22 Sup. Ct. 900, 46 L. Ed. 1151. Nor is there anything indicative of a contrary view expressed in L. & N. R. Co. v. Central Stock Yards Co., 212 U. S. 132, 29 Sup. Ct. 246, 53 L. Ed. 441, relied Referring now to the facts of the Stock Yards Case, we find that there were two' stock yards located in the city of Louisville. The Central Stock Yards were the stock terminals of the Southern Railway; the Bourbon Stock Yards were the stock terminals of the Louisville & Nashville railroad. An effort was made to require the Louisville & Nashville railroad to make delivery of cars at the Central Stock Yards instead of at its own terminals, the Bourbon Stock Yards. In holding that the Louisville & Nashville road could not be required to do this, the court, at page 143 of 212 U. S., page 248 of 29 Sup. Ct. (53 L. Ed. 441), says: "It was argued however, that the requirement that the plaintiff in error should deliver its own cars to another road was void under the fourteenth amendment as an unlawful taking of its property. In view of the well-known and necessary practice of connecting roads, we are far from saying that a valid law could not be passed to prevent the cost and loss of time entailed by needless transshipment or breaking bulk, in case of an unreasonable refusal by a carrier to interchange cars with another for through traffic. We do not pass upon that question. It is enough to observe that such a law perhaps ought to be so limit 136 ed as to respect the paramount needs of the Now, referring again to section 57, it will be noted that it provides for the very thing the opinion in the Stock Yards Case indicates would destroy the objectionable feature of the order sought, in providing for the expeditious return and proper compensation for the cars used in the interchange. It will also be seen, by referring to the last sentence of the quoted opinion, that the court does not hold that the silence of the Constitution might not be remedied by appropriate legislative act or by regulation of a duly authorized subordinate body, when such legislation is consistent with the state Constitu tion. It seems to us we have this remedial provision in the establishment of the Public Service Commission, with the power conferred and regulation fixed for its exercise in section 57, and that no showing can be made that such power so conferred and so to be exercised is inconsistent with any constitutional provision. [8] Appellants attack the sufficiency of the evidence, the joint rate, and its division be tween the connecting carriers. We find no merit in these contentions. Inquiries of this nature depend altogether upon expert evidence and we might add expert findings, and the state has conferred the power upon the commission to determine the merits of the controversy, and its findings should not be disturbed unless they show evidence of arbitrariness and disregard of the material rights of the parties to the controversy. Such decisions are peculiarly within the province of the commission to make, and "its findings are fortified by presumptions of truth due to the judgments of a tribunal appointed by law Interstate and informed by experience." Commerce Commission v. C. R. I. Pac. Ry. Co., 218 U. S. 88, 30 Sup. Ct. 651, 54 L. Ed. 946. We repeat what we said in Puget Sound Electric Ry. v. Railroad Commission, 65 Wash. 75, 117 Pac. 739, Ann. Cas. 1913B, 763: "The inquiry was of such a nature as to call largely for expert testimony, and the findings made are necessarily of the same nature. In such a case great consideration should be given the findings of that body to whom the state has primarily given the right and authority to determine questions of this character. Such findings should not be disturbed unless they bear evidence of having been arbitrarily reached and without a full and due consideration of all the controlling facts. Their determination calls for the exercise of economic as well as legal principles. Courts may well review the questions submitted, in so far as they suggest the application of legal principles. In so far as they suggest the enunciation of proper economic rules, they must defer largely to those who, by study, experience, and calling, are in a better situation to determine what is and what is not a proper method of determination." Appellants submit a late decision of the Interstate Commerce Commission, made June 13th, last, in the case of Manufacturers' Ry. Co. v. St. Louis, Iron Mountain & So. Ry. Co., as supporting their contention of lack of power in the commission to establish joint rates. We cannot find anything in that case that is decisive of any point here involved contrary to any conclusion we have reached. That the decision was not so intended is manifest from the fact that the Interstate Commerce Commission has on two occasions reviewed the joint rate order here involved in so far as it applies to interstate traffic, and in each instance has sustained it, not because the state commission had reached the same conclusion respecting state traffic, but because the Interstate Commerce Com mission held the through charges resulting from the exclusion of South Tacoma from the Tacoma switching district were excessive, and that any joint rate on interstate traffic to and from South Tacoma, in excess of the differential over the Tacoma rates proposed by the state commission on such traffic, would be unreasonable, and with that view required the Northern Pacific Railway Company and appellants to establish joint through rates. Public Service Commission v. N. P. Ry. Co., 23 Interst. Com. Com'n Rep. 256; s. c., 26 Interst. Com. Com'n Rep. 272. We refrain from further discussion, believing that the orders of the commission were in all things proper, and within the power conferred upon the commission. The judgment is affirmed. CROW, C. J., and PARKER and MOUNT, JJ., concur. FULLERTON, J. I concur in the result. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1888-1895; Dec. Dig. § 740.*] 8. WILLS (698*)-SCOPE OF REMEDY. Where plaintiff's title depends upon a will, she need not bring an independent action for quiet title and in that proceeding have the will construed. 2. WILLS (488*)-CONSTRUCTION-AMBIGU the construction of the will, but may sue to ITIES. It is only where the terms of a will are ambiguous and the testator's intention is doubtful that resort may be had to adventitious circumstances to determine that intention. [Ed. Note.-For other cases, see Wills, Cent. Dig. §8 1024, 1025, 1033-1036; Dec.Dig. § 488. 3. WILLS (455*)-ConsTRUCTION. Courts will not slavishly adhere to mere technical rules of construction in interpreting wills. [Ed. Note.-For other cases, see Wills, Cent. Dig. 972, 973, 976; Dec. Dig. § 455.*] 4. WILLS (§ 523*)-CONSTRUCTION-ESTATES DEVISED. A gift to a class being a gift to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in some definite proportions, a devise of an undivided two-thirds interest in a building to the testator's son and the son's three children, by name, to take share and share alike, is not a gift to a class, and hence the predecease of one of the children results in a lapsed devise which will pass under the residuary clause of the will. [Ed. Note.-For other cases, see Wills, Cent. Dig. 1115; Dec. Dig. § 523.*] 5. WILLS ( 523*)-CONSTRUCTION. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 1676; Dec. Dig. § 698.*] 9. APPEAL AND ERROR (§ 425*) -NOTICE OF APPEAL-TIME FOR SERVING. Under Rem. & Bal. Code, § 1720, providing that all persons whose interests are similarly. affected by any judgment may join in the notice of appeal, and any party who is not joined may, at any time within ten days after notice is given, serve an independent notice or join in the appeal already given by filing a statement effect, an attempt by the grantees of the prinwith the clerk of the superior court to that to perfect an appeal by serving notice 30 days cipal defendants, who urged the same defense, after the service of notice of the appeal by the principal defendants, comes too late. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2155-2161; Dec. Dig. § 425.*] Department 2. Appeal from Superior Court, Spokane County. Af Action by Frances E. Peck against Heman Everett Peck and others and Isabella McLaren Howard and another. From a judgment for plaintiff, defendants appeal. A testator devised to his wife a one-third firmed on the appeal of the first-named deinterest in a parcel of land occupied by a fendants; that of the last being dismissed. building and remaining two-thirds to his son and his three grandsons, naming them. Before Tolman & King, of Spokane, for appelthe death of the testator, one of the grandsons lants. John M. Gleeson, A. G. Gray, and A. died without issue. Held that, even though the testator knew that there was no cordiality between his son and his wife, who was not the son's mother, yet, as he did not make the gift one to a class, there was no survivorship between the son and the testator's grandchildren, and the lapsed legacy of the deceased grandchild will pass to the wife under a devise of the residue to her. E. Gallagher, all of Spokane, for respondent. ELLIS, J. This action was brought by Frances E. Peck to remove a cloud from the title to a one-half interest in certain real estate in the city of Spokane which she [Ed. Note. For other cases, see Wills, Cent. claims under the will of her deceased husDig. 1115; Dec. Dig. § 523.*] 6. WILLS (§ 740*) - DISTRIBUTION CONSTITUTES. WHAT Where a testator devised undivided interest in a building to his wife and to his son and grandchildren, the fact that the wife, who was the executrix, allowed the son to collect part of the rent before the period fixed by the will, which was noninterventional, for distribution, and also joined with the son in mortgaging property, will not establish a distribution which would preclude the wife from claiming a lapsed devise to one of the grandchildren under the residuary clause of the will. [Ed. Note.-For other cases, see Wills, Cent. Dig. $ 1888-1895; Dec. Dig. 740.*] 7. WILLS (§ 740*) LAPSED DEVISE - ESTOPPEL TO CLAIM. Where a testator devised an undivided twothirds interest in a building to his son and three grandsons, one of whom died before the testator. the fact that the wife, who was made executrix of the will. allowed the son to collect the rent for two-thirds of the building, and joined in a mortgage by the son of an undivided two-thirds of the building, will not raise an band and of which one-third, or one-sixth of the entire property, is claimed by the defendants Heman Everett Peck, Roy Peck, and Margaret Peck by virtue of the same will. The following facts are not in dispute: The plaintiff was the wife of one O. O. Peck at the time of his death and for many years prior thereto. She was his second wife. By his first wife, O. O. Peck had one son, the defendant Heman Everett Peck. This son had three sons, Frank Peck, Roy Peck, and Ora Peck. The property here in question was the separate property of O. O. Peck, acquired by him between the time of the death of his first wife and his marriage with the plaintiff. In 1902, O. O. Peck made. a nonintervention will of which the following clauses are pertinent to the issues here involved: "Second. I give, bequeath and devise to my wife, Frances E. Peck, one undivided one •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |