A significant case interpreting the rights of PCN ferry operators reinforces the WUTC's determination that "for the public use" extends to a subset of the public ยถ29 In Kitsap County Transportation Co. v. Manitou Beach-Agate Pass Ferry Ass'n , 176 Wash. 486, 494-96, 30 P.2d 233 (1934), the Supreme Court described the strong public policy that supports protecting a regulated ferry from unregulated competition. There, Kitsap County Transportation Company (KCTC) held a certificate to provide year-around ferry service from Seattle to a point on Bainbridge Island.
To the contrary, the regulation of ferry operation has traditionally been the prerogative of state and local authorities. See, e.g., Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 215โ17, 5 S.Ct. 826, 29 L.Ed. 158 (1885) (recognizing that โ[t]he power of the states to regulate matters of internal police includes the establishment of ferriesโ so long as regulations do not burden interstate commerce); Can. Pac. Ry. Co. v. United States, 73 F.2d 831, 833 (9th Cir.1934) (explaining that โ[a]t common law a franchise was necessary to the creation of a ferry and ... an integral part of the definitionโ); Kitsap Cnty. Transp. Co. v. Manitou BeachโAgate Pass Ferry Ass'n, 176 Wash. 486, 30 P.2d 233, 234โ35, 237 (1934) (finding a state PCN requirement to be within the state's police power in order to serve โthe best interests of the traveling public at largeโ). In this case, the state of Washington has a vital interest in regulating traffic on its navigable waterways.
Neither Const. art. 12, ยง 19 nor Const. art. 12, ยง 22 represents an absolute prohibition against monopolies. See State ex rel. Department of Pub. Works v. Inland Forwarding Corp., 164 Wn. 412, 2 P.2d 888 (1931); Kitsap Cy. Transp. Co. v. Manitou Beach-Agate Pass Ferry Ass'n, 176 Wn. 486, 496, 30 P.2d 233 (1934) (permitting State to prohibit entry of competitor when entrance would be "inimical to the best interests of the . . . public at large"); Chas. Uhden, Inc. v. Greenough, 181 Wn. 412, 43 P.2d 983, 98 A.L.R. 1181 (1935). They do however manifest the state's abhorrence of monopolies.
On the other hand, a franchise to use the streets in its usual sense is the right to use or occupy the streets for a stated period of time, for which a valuable consideration is paid, and contemplates a contract between the municipality and the individual to whom granted, and vests in the holder thereof a limited property right to use the public streets. See Pennsylvania R. Co. v. Public Utilities Commission of Ohio, 116 Ohio St. 80, 155 N.E. 694; Ex parte Lockhart, 350 Mo. 1220, 171 S.W.2d 660; Effenberger v. Marconnit, 135 Neb. 558, 283, N.W. 223; Re St. Johns River Line Company et al., 7 P.U.R.(N.S.) 268; Kitsap County Transp. Co. v. Manitou Beach-Agate Pass Ferry Ass'n, 176 Wn. 486, 30 P.2d 233. In 23 Am.Jur., Franchises, sec. 4, p. 717, we find: "As a rule, franchises spring from contracts between the sovereign power and private citizens, made upon valuable considerations, for purposes of individual advantage as well as public benefit, and in such case a franchise partakes of a double nature and character. So far as it affects or concerns the public, it is public juris and is subject to governmental control.
He is foreclosed by that admission to now claim a right to a franchise. [3] Appellant has a vested right in its certificate to operate to and from the area of the dam site. Kitsap County Transp. Co. v. Manitou Beach-Agate Pass Ferry Ass'n., 176 Wn. 486, 30 P.2d 233. That right cannot be taken away until a hearing is had, a proper order entered based upon a showing of a violation of the law relating to traffic regulations, and it is shown that the certificate holder has refused to obey the order. State ex rel. United Auto Transp. Co. v. Department of Public Works, 119 Wn. 381, 206 P. 21.
In January, 1933, the Manitou Beach-Agate Pass Ferry Association, an organization of residents of the north part of the island, petitioned the department to order the Kitsap company to establish ferry service between Seattle and Manitou Beach, and across Agate pass. While its petition was pending in the department, the association resorted to self-help by chartering a ferry boat to make ten round trips per day between Seattle and Manitou Beach. It had made three round trips when the service was stopped by a restraining order, on complaint of the Kitsap company that it constituted an infringement upon the rights granted in its certificate. This court upheld that contention in Kitsap County Transportation Co. v. Manitou etc. Ass'n, 176 Wn. 486, 30 P.2d 233, and, in doing so, said, of the island problem: "The basic difficulty, as we read the record, is that the revenues of traffic between Seattle and Bainbridge Island are not sufficient to support the kind of transportation desired by appellants. It appears from the record that respondent has at all times endeavored to keep its service abreast of the demands of traffic, and we think has succeeded in doing so. As recently as 1928, respondent put a new ferry in service, at a cost of one hundred fifty thousand dollars.
Appellee's utility status vel non is not affected by the fact that it is a nonprofit corporation. Gilman v. Somerset Farmers' Co-Op. Tel. Co., 129 Me. 243, 151 A. 440; Celina Mercer County Tel. Co. v. Union-Center Mut. Tel. Co., 102 Ohio St. 487, 133 N.E. 540, 21 A.L.R. 1145; Ashley Tri-County Mut. Tel. Co. v. New Telephone Co., 92 Ohio St. 336, 110 N.E. 959; Com. v. Staunton Mut. Tel. Co., 134 Va. 291, 114 S.E. 600; Kitsap County Tr. Co. v. Manitou, etc., Ass'n, 176 Wn. 486, 30 P.(2d) 233; Ex parte Baldwin County Producers' Corp., 203 Ala. 345, 83 So. 69; Darnell v. Edwards, 244 U.S. 564, 37 S.Ct. 701, 61 L.Ed. 1317; Mobile O. R. Co. v. Tennessee, 153 U.S. 486, 14 S.Ct. 968, 38 L.Ed. 793; Knight v. Alamo Mfg. Co., 190 Mich. 223, 157 N.W. 24, 6 A.L.R. 789; Mobile T. W. Co. v. Hartwell, 208 Ala. 420, 95 So. 191; Mundy v. Van Hoose, 104 Ga. 292, 30 S.E. 783. The act of 1935 is violative of section 45 of the Constitution.