Benton v. Seattle Elec. Co.

• Decision Date: 29 July 1908
• Citation: 96 P. 1033,50 Wash. 156
• Court: Washington Supreme Court
• Parties: BENTON et ux. v. SEATTLE ELECTRIC CO. et al.

96 P. 1033

50 Wash. 156

BENTON et ux. v. SEATTLE ELECTRIC CO. et al.

Supreme Court of Washington

July 29, 1908

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by Miles P. Benton and wife against the Seattle Electric Company and others. From a judgment for defendants plaintiffs appeal. Affirmed.

Wardall & Wardall, for appellants.

James B. Howe, for respondents.

ROOT J.

On the 29th of April, 1908, the Seattle Electric Company, a corporation operating a street car system in the city of Seattle, made application to the council of that city for a franchise to construct, maintain, and operate a street railway upon certain parts of Alki avenue, Sixty-Third avenue southwest, and other streets, avenues, and places in that city. On the 1st of June, 1908, the city council passed an ordinance granting such franchise, and the same was approved by the mayor on June 5, 1908. This ordinance complied in all respects with the charter of the city of Seattle, as the same existed prior to and up to the time of the adoption of the amendments to such charter, made at the municipal election in March, 1908. On account of it not complying with these amendments, this action was prosecuted by the plaintiffs, who are residents, property holders, and taxpayers within said city, to enjoin the city officers from authorizing the construction of said railway under said franchise, or recognizing any franchise as being granted, and for a decree declaring such attempted franchise to be null and void. A demurrer to the complaint was sustained, and, the plaintiffs electing to stand upon their demurrer, a judgment of dismissal was entered, from which this appeal is prosecuted.

Section 20 of article 4 of the city charter, as amended at the election in March, 1908, contains the following: 'Every grant of a franchise, right or privilege shall be subject to the right of the city council, or the people of the city acting for themselves by the initiative and referendum, at any time subsequent to the grant, to repeal, amend or modify the said grant with due regard to the rights of the grantee and the interest of the public; and to cancel, forfeit and abrogate any such grant if the franchise granted thereby is not operated in full accordance with its provisions, or at all; and at any time during the grant to acquire, by purchase or condemnation, for the use of the city itself, all the property of the grantee within the limits of the public streets, at a fair and just value, which shall not include any valuation of the franchise itself, which shall thereupon terminate; and every ordinance making any such grant shall contain a reservation of these rights of the city council and of the people of the city acting for themselves by the initiative and referendum, to so repeal, amend or modify said ordinance, and to so cancel, forfeit and abrogate the grant and to so acquire the property of the grantee in the public streets, as hereinabove set forth. The city council shall not consider or grant any application for extension of the period of any franchise, nor any new franchise covering all or any substantial part of the rights or privileges of any existing franchise, until within three years of the expiration of the existing grant, and then only after submission to and approval by majority vote of the qualified electors. * * * The proposed franchise shall further contain all other reservations and limitations set forth in this charter and the laws of the state. * * * If the proposed franchise ordinance receives in its favor a majority of all the votes cast for and against the same, it shall be deemed to be ratified and the city council may thereupon finally pass and adopt the same. If it fail to receive said majority in its favor, the franchise ordinance shall be deemed rejected and no further proceedings shall be had thereunder. The same methods of procedure shall obtain in the extension of any existing franchises, or any rights thereunder, as in the grant of a new franchise. No street railway franchise shall in any event be granted, extended or renewed to any date beyond December 31, 1934.' Section 1 of article 4 of the charter of the city of Seattle, as amended at the election in March, 1908, contains the following: 'The legislative powers of the city of Seattle shall be vested in a mayor and city council, who shall have such powers as are provided for by this charter; but the power to propose for themselves any ordinance dealing with any matter within the realm of local affairs or municipal business, and to enact or reject the same at the polls, independent of the mayor and city council, is also reserved by the people of the city of Seattle and provision is made for the exercise of such reserved power; and there is further reserved by and provision made for the exercise by the people of Seattle of the power, at their own option, to require submission to the vote of the qualified electors, and thereby to approve or reject at the polls any ordinance, or any section, item or part of any ordinance dealing with any matter within the realm of local affairs or municipal business, which may have passed the city council and mayor, acting in the usual prescribed manner as the ordinary legislative authority.'

The amendments to the charter voted on in March, 1908, were made pursuant to 'an act providing for the direct amendment of city charters with respect to local affairs,' approved March 21, 1903, commonly known as the 'direct amendment act.' Laws 1903, p. 393, c. 186. It is conceded by respondent that, if the amendment adopted by the people at the election in March, 1908, constitutes a valid portion of the charter of the city, then the franchise is invalid, and the demurrer should have been overruled; and it is conceded by appellants that, if said charter amendment is invalid then the ordinance is legal, and the demurrer was properly sustained. Respondent makes the following contentions: 'The Legislature of the state having enacted a general law granting to the legislative authority of cities the authority to authorize the construction, maintenance, and operation of street railways and electric railways upon the streets of cities, and to prescribe the terms and conditions of such construction and operation, the attempted amendment of the charter of the city, so as to impair, surrender, and abrogate such authority, is illegal. The attempted amendment of the charter, being in conflict with a general law of the state upon the particular subject of electric railways, is invalid. The abrogation of the power of the city to grant franchises which would have any effect after December 31, 1934, being a void attempt to surrender a power conferred by the Legislature, and such abrogation being the inducement for the adoption of the amendment, the whole amendment is void. The attempted amendment, having been adopted...