Appropriation.

Sec. 24. There is hereby appropriated out of any money in the state treasury not otherwise appropriated the sum of seventy-five thousand dollars, or so much thereof as may be necessary to carry out the provisions of this act.

Repeal.

Sec. 25. All laws and parts of laws in conflict with this act are hereby repealed.

Constitutionality.

Sec. 26. If any section, subdivision, sentence or clause of this act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of the act.

Applicable to express companies.

Sec. 27. That all provisions of this act and all penalties and forfeitures provided herein applicable to railroad companies shall likewise be applicable to express companies.

APPENDIX II.

OPINIONS BY ATTORNEY GENERAL RELATIVE TO LAWS AFFECTING THE RAILROAD COM

MISSION OF WASHINGTON.

The following opinions have been received from the Attorney General's office relative to powers and duties of the Railroad Commission:

RATE LAW OF 1893.

(Informal Complaint No. 4.)

Opinion of Attorney General John D. Atkinson, rendered January 2, 1906, to the Hon. Railroad Commission of Washington, Olympia, Washington.

In reply to your letter of inquiry of recent date, which reads as follows:

"Will you kindly advise the Railroad Commission of Washington, at your earliest convenience, as to whether chapter 85 of the Laws of 1893, being an act entitled 'An act regulating and fixing maximum railroad freight rates in the State of Washington, and providing a penalty for violation thereof,' is in force and binding at this date, and whether the railroads are entitled to charge any sum in excess of the maximum rate enumerated in such chapter."

I have to advise you that I am of the opinion that chapter 85, Laws of 1893, referred to in your inquiry, is generally repealed by chapter 68, Laws of 1897, page 113. Both laws are general acts purporting to cover the question of railroad rates. The title of the law of 1893, page 210, is as follows:

"An act regulating and fixing maximum railroad freight rates in the State of Washington, and providing a penalty for violation thereof."

The title of the act of 1897, page 113, is as follows:

"An act regulating common carriers, fixing maximum railroad freight rates in the State of Washington, prohibiting discrimination by railroad common carriers in the matter of such rates and of facilities for shipment, and providing for the due enforcement and observance of the rates so fixed, and of the regulations and prohibitions before referred to, and providing a method of determining the reasonableness of such rates and regulations, and making an appropriation therefor."

It is apparent from the titles that both acts are intended as general acts regulating and fixing maximum railroad freight rates. I am aware that a careful comparison of the two acts will disclose that section 1

of the law of 1897 pertains to agricultural products and section 2 to other specially enumerated products, and probably those two sections do not cover as generally the question of freight rates as do sections 1 and 2 of the law of 1893. Section 2 of the law of 1893, providing a rate on all products other than those enumerated in section 1, and, to the extent of the articles not enumerated in the 1897 law, the 1893 law is broader in its application, but we do not believe that this affects the repeal by implication of the entire act of 1893.

"Where the latter of two acts covers the whole subject matter of the earlier one, not purporting to amend it, and plainly shows that it was intended to be a substitute for the earlier act, such later act will operate as a repeal of the earlier one, though the two are not repugnant." (A. & E. Enc. of Law, Vol. 27, page 731.)

The syllabus in the case of State vs. Carbon Mill Coal Company, 4 Washington 422, is as follows:

"The act of 1883, regulating the operation of coal mines and providing for their inspection, is impliedly repealed by the act of February 2, 1888, entitled, 'An act in relation to coal mines,' which covers the same ground and has for its object the same general purposes; consequently, the four mill license tax upon every ton of coal mined, which the former act required, cannot be held to continue in operation when the substantial provisions of that act are replaced by a later enactment."

It was said in the body of the decision of this case, as follows:

"The act of 1883 was primarily an act to regulate the operation of coal mines, and to provide for an inspection thereof. The act of 1888 covered precisely the same ground, and had for its object the same general purposes. The later act, under rules of interpretation which are well settled, must be taken to have repealed the earlier, even though there had been no repealing clause included in it. Murdock v. Memphis, 20 Wall. 616; Sutherland, Stat. Const. §§ 154-156; Van Inwagen v. Chicago, 61 Ill. 31; Pierpont vs. Crouch, 10 Cal. 315; United States v. Tynen, 11 Wall. 91. That there are points of difference between the two acts can constitute no reason why fragments of the former should be held to continue in operation when its substantial provisions are replaced."

In the case of Baer vs. Choir, 7 Washington 631, page 641, it is said: "It is maintained, however, that as the same provision occurred in the revenue law of 1869 (Law, p. 176), and as the repealing clause of the act of 1871 only covered all acts and parts of acts in conflict with the new act, the limitation section remained the law of the territory, because it did not conflict with anything contained in the new law. Each of these acts was entitled 'An act to provide for the assessing and collecting of county and territorial revenue'; each covered the same subject matter; and it was evidently the legislative intention that the entire act of 1869, as a revenue measure, should cease to have any existence. If all the points of difference in an old revenue law which were not clearly in conflict with the new act should be construed to remain in force, the problems of taxation would be multiplied beyond human understanding. To have to understand and obey one law at a time is as much as the average citizen is equal to.

"Laws 1893, ch. 24, p. 32 (Bal. Code, §§ 5900-5918), being a complete act upon the subject of liens of mechanics and material men, and providing in § 2 that if the person causing the construction, alteration

or repair of any building own less than a fee simple in such land, then only his interest therein is subject to the lien, and the repealing clause being to the effect that all acts or parts of acts in conflict with its provisions are thereby repealed, it must be construed that the act of 1893 works a repeal of Gen. Stat. § 1671, which provides that should the owner of any land desire to prevent the lien from attaching, he may do so by giving notice in writing, posted in some conspicuous place upon said land or improvement, to the effect that he will not be responsible for said improvement." Stetson-Post Mill Co. et al. v. Brown et al., 21 Wash. 619. (Syllabus.)

For a long list of authorities bearing upon the question that where a general act is enacted with reference to any particular subject, that such general act repeals any previous general act, although the provisions are not necessarily repugnant, see Note 4 on page 731, volume 26, of American & Eng. Enc. Law, and Note 1 on page 732, volume 26, American & Eng. Enc. of Law.

Judge Ballinger, in compiling the laws of the State of Washington, has omitted therefrom the laws of 1893, showing his conclusion that the same were repealed by the laws of 1897. Of course, if they were improperly omitted, such fact would not affect the validity of the law, but it shows the opinion of a good lawyer upon the question of the repeal of the law of 1893 by the law of 1897.

Your inquiry as to whether railroads are entitled to charge any sum in excess of the maximum rate enumerated in said chapter, referred to in your letter, requires a study and investigation as to the effect of the law creating the Railroad Commission, of 1905, upon the law of 1897. The law of 1905, page 145, is entitled as follows:

"An act to establish a railroad commission for the State of Washington, whereby discrimination and extortion in railroad and express charges may be prevented and reasonable and just freight and passenger service and tariff may be corrected and established; to authorize the commission to make all necessary rules and regulations for its government, and the carrying into effect the provisions of this act; to give to said commission the power to regulate the sale of railroad tickets, and to correct and provide charges for hauling loaded or empty cars, proper trackage, proper train service, sufficient freight and passenger rooms, and just and reasonable joint rates and demurral charges; to prescribe penalties for the violation of this act, and to provide means and rules for its proper enforcement, and making an appropriation therefor."

The power of the railroad commission therein created is defined as follows:

"The said Railroad Commission of Washington is hereby vested with power and authority, upon complaint made as hereinafter provided or by inquiry upon their own motion, after a full hearing, to make any findings declaring any existing rate for the transportation of persons or property, or any regulation whatsoever affecting said rate or charge for transportation of loaded or empty cars or demurrage or reciprocal demurrage or the sufficiency of the train service and waiting rooms for passengers and rooms for freight and baggage to be unreasonable or unjustly discriminatory, or insufficient, and to declare and order what shall be a just and reasonable rate, practice, regulation or thing to