Clark v. Olson , 177 Wash. 237 ( 1934 )

I am unable to concur in the majority opinion.

The statute (Rem. Rev. Stat., § 10344) defines a "water company" as including every person "owning, controlling, operating or managing any water system for hire within this state." It will be noticed that, by this statute, a water company is one which is operated "for hire." The same section of the statute defines a "public service company" as including a water company, as that term is defined in the section. Whether a person is operating a public service company, depends not upon whether it is supplying water to the public as a class, but it is such company if it supplies water to a limited portion of the public such as can be served by the system.

As stated in Van Hoosear v. Railroad Commission, 184 Cal. 553,194 P. 1003, and cited in the majority opinion:

"The test to be applied is whether or not the petitioner held himself out, expressly or impliedly, as engaged in the business of supplying water to the public as a class, not necessarily to all of the public, but to any limited portion of it, such portion, for example, as could be served by his system, as contradistinguished from his holding himself out as serving or ready to serve only particular individuals, either as a matter of accommodation or for other reasons peculiar and particular to them. [Citing authorities.]"

Under the facts stated in the majority opinion, it seems to me that the appellant was, if not expressly, impliedly holding himself out as engaged in the business of supplying water to all persons that could be served by his system. No one had at any time been refused the service of water by him except the respondent. It is true that only a limited number were supplied, but under the test to be applied, that was sufficient to constitute a public service company within the meaning of the statute, because all persons that applied, with the one exception mentioned, had been furnished water.

The fact that the system was not operated for profit, if such were the fact, is not of controlling importance. The statute makes no mention of profit, but says that a water company is one operated "for hire." That the appellant operated his water system for hire, it seems to me, cannot be questioned.

For the reasons stated, I dissent.

BEALS, C.J., and BLAKE, J., concur with MAIN, J.