Honolulu Rapid Transit Company v. Dolim
Decision Date | 11 April 1972 |
Docket Number | No. 71-1216.,71-1216. |
Citation | 459 F.2d 551 |
Parties | HONOLULU RAPID TRANSIT COMPANY, Limited, et al., Plaintiffs-Appellants, v. Lorrin M. DOLIM et al., Defendants-Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
Francis N. Marshall (argued), Walter R. Allen, James B. Atkin, of Pillsbury, Madison & Sutro, San Francisco, Cal., Howard K. Hoddick, Peter G. Wheelon, of Anthony, Waddoups, Hoddick & Brown, Honolulu, Hawaii, for plaintiffs-appellants.
Harry S. Y. Kim, Deputy Atty. Gen. (argued), Bertram T. Kanbara, Atty. Gen., Honolulu, Hawaii, Paul Devens (argued), Honolulu, Hawaii, Robert M. Ehrhorn, Jr. (argued), David Y. Mar, Honolulu, Hawaii, for defendants-appellees.
Before MERRILL and DUNIWAY, Circuit Judges, and BELLONI, District Judge.*
Honolulu Rapid Transit (HRT) is a Hawaii corporation that provides public transportation services in the City of Honolulu. It was formed in 1898, when it received its first franchise from the Territory of Hawaii to operate a public street railway. With expiration of the franchise due within a few years the Legislature of Hawaii in 1921 enacted a new franchise, Act 186 Session Laws of Hawaii, 1921, which was duly approved by the Congress1 and submitted to HRT for its acceptance. On recommendation of the board of directors, the shareholders voted to accept the franchise and HRT has since operated under it.
The franchise, by § 20, permits the City of Honolulu to purchase HRT's property. Respecting the purchase price, it provides:
In 1970 the City resolved to purchase HRT's property and applied to the Hawaii Public Utilities Commission for valuation pursuant to the franchise terms.
HRT then brought this suit seeking (1) a declaration that § 20 is unconstitutional since it provides for the taking of HRT's property for public use without payment of just compensation, and (2) an injunction against further proceedings before the Public Utilities Commission. The suit was dismissed by the District Court for failure to state a claim. We affirm.
HRT's position is that even though the Government has an absolute power to grant or withhold a privilege such as the statutory franchise here in question, it cannot exact a waiver of constitutional rights as the price of the grant.2 HRT construes the purchase and price provisions of the franchise as such an exaction : a waiver of HRT's rights to receive just compensation should its property be taken by the City for public use.
HRT relies upon Frost & Frost Trucking Co. v. Railroad Comm. (1926), 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101. There the Court struck down state action conditioning use of its highways by a private trucker upon the trucker's assumption of the status and burdens of a common carrier. The Court stated :
(271 U.S. 593-594, 46 S.Ct. 607).
But HRT disregards the fact that there was here no "taking" by the City. This was not a unilateral exercise by the City of its power of eminent domain. The right of the City to acquire HRT's property at a certain price was not based upon its power to take, but upon agreement between the parties. Thus there was no event to which HRT's asserted constitutional rights attached. The transaction had "passed out of the range of the Fifth Amendment" and was a situation where "Parties, supposedly with due regard to their own interests, bargain between themselves as to compensation." Albrecht v. United States, 329 U.S. 599, 603-604, 67 S.Ct. 606, 609, 91 L.Ed. 532 (1947). To the same effect, United States v. Appalachian Elec. Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940) ; Fox River Paper Co. v. R. R. Comm., 274 U.S. 651, 47 S.Ct. 669, 71 L.Ed. 1279 (1927) ; Portland General Electric Co. v. Fed. Power Comm., 328 F.2d 165 (9th Cir. 1964). And see Oppenheim, Unconstitutional Conditions and State Powers, 26 Mich. L.R. 186, 189 (1941).
HRT's contentions, if valid, would gravely prejudice if not destroy the power of government to utilize options to acquire property, through making it impossible for the...
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Rose City Transit Co. v. City of Portland
...Nor does it bar them from embodying that agreement in a contract * * *.' In a case similar to the one at bar, Honolulu Rapid Transit Company (HRT) v. Dolim, 459 F.2d 551 (9th Cir.), cert denied, 409 U.S. 875, 93 S.Ct. 124, 34 L.Ed.2d 128 (1972), the franchise permitted the city to purchase ......
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...must amount to a taking of property without due process of law. The City concludes that under the reasoning of Honolulu Rapid Transit Co. v. Dolim, 459 F.2d 551 (9th Cir.), cert. denied, 409 U.S. 875, 93 S.Ct. 124, 34 L.Ed.2d 128 (1972), which we decided before Perry, a taking of property i......
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