California-Oregon Power Co. v. City of Medford

• Decision Date: 04 October 1915
• Docket Number: 6494.
• Citation: 226 F. 957
• Parties: CALIFORNIA-OREGON POWER CO. v. CITY OF MEDFORD et al.
• Court: U.S. District Court — District of Oregon

226 F. 957

CALIFORNIA-OREGON POWER CO. v. CITY OF MEDFORD et al.

No. 6494.

United States District Court, D. Oregon.

October 4, 1915

This is a suit to enforce in part the specific performance of a contract entered into June 7, 1907, by and between the city of Medford and the Condor Water & Power Company; the complainant having succeeded to all the rights of the Condor Company in and to the contract. Under the contract, the city leased to the company its electric light plant for a term of 25 years, with an option on the part of the company to purchase the plant within 5 years, at the stipulated price of $20,000, and with the further condition that the city might repurchase the entire plant at the end of the term of the lease. And in connection therewith the city attempted to grant to said company by ordinance a franchise for the use of its streets and alleys for erecting and maintaining its electric lighting plant for the term of 25 years. The defendants dispute the validity of the contract and ordinance as being ultra vires and beyond the power of the city to negotiate or adopt.

James R. Tapscott, of Yreka, Cal., A. E. Reames, of Medford, Or and A. C. Hough, of Grants Pass, Or., for plaintiff.

Gus Newbury and H. D. Norton, both of Medford, Or., for defendants.

WOLVERTON District Judge (after stating the facts as above).

Prior to the time of the adoption of ordinances by the city of Medford for carrying into effect the initiative and referendum powers reserved to the people of the municipalities in pursuance of section la, art. 4, of the Constitution of the state, the city council was authorized by charter regulations (section 25, subd. 11, as amended) 'To provide electric or other lights for said city and its inhabitants, and to that end to own, buy, sell, and lease or contract for property, or contract with third parties to furnish the same to the city, or to its inhabitants, and to regulate and control the same and the use thereof; provided that no purchase, sale, or lease of any light plant or system shall be made by the council until the same shall have been authorized by a vote of the qualified voters of the city at an election held for that purpose.'

And (subdivision 29):

'To regulate, control, or prohibit the erection of electric light, telegraph, telephone, or other poles or wires upon or over the streets or alleys, or public parks or buildings of said city, and the laying of water or other pipes and sewers.'

The charter contained this further provision:

'Sec. 100. No contract shall be entered into by the city, or any franchise granted by it, for a longer period than ten years, and no franchise shall grant any exclusive right or rights.'

By Ordinance No. 124, approved by the mayor March 26, 1907, the city provided the manner in which amendments of the charter might be had. Among other things, it was enacted that amendments to that document might be proposed by the city council by ordinance or resolution, and submitted to the voters of the city for approval or rejection. This ordinance was subsequently amended by Ordinance No. 125, approved by the mayor April 2, 1907, but not as it pertains to the subject in hand.

Ordinance No. 126, by authority of which the city entered into the contract in question, contains the following clause:

'And that the charter of the said city, and all ordinances and parts of ordinances in conflict herewith are hereby repealed in so far as they conflict with the provisions of this ordinance, but no further.'

It is urged therefore that the effect of this ordinance was to repeal or supersede section 100 of the original charter in so far as it might have relation to the subject-matter of the controverted contract.

The authority for submitting Ordinance No. 126 to the vote of the people, whatever it was, was given by the city council on May 14, 1907. By reference to the minutes of the council proceedings of that date, we ascertain the manner in which it was conferred. The purpose of the meeting, which was on adjournment from a regular meeting, was:

'To consider propositions for the lease or sale of the electric light plant and to order a special election for the purpose of submitting certain charter amendments, and electric street railway franchise, and the sale of the electric light plant, and such other propositions as the board might deem proper, to the vote of the people for their election or rejection.'

It then further appears that the propositions of the Condor Water & Power Company and the Idaho-Washington Light & Power Company were presented and read, and that on motion it was directed that the two propositions be accepted and placed before the people for their ratification or rejection. And it was further ordered:

'That there be a special election held on the 4th day of June, 1907, for the purpose of voting upon certain charter amendments, electric railway franchises, sale of the city electric light plant, and the propositions of leasing or selling of said light plant to the Condor Water & Power Company and the Idaho-Washington Light & Power Company.'

Further it appears that a resolution submitting certain charter amendments to a vote of the people at the special election ordered for June 4, 1907, was presented and read, and on motion the resolution was adopted. This is all the minutes show relative to the submission of Ordinance No. 126 to a vote of the people, and all that they show relative to the adoption of any resolution or ordinance submitting any amendments of the charter or any ordinance to a vote of the people.

An election was held on the day fixed, and by the ballot it is shown that there was 'submitted, by order of city council,' 'ordinance granting electric lighting franchise for 25 years to Idaho-Washington Light & Power Company,' and 'ordinance granting electric lighting franchise for 25 years to Condor Water & Power Company. ' The first of these propositions seems to have been rejected, but the latter was adopted by a majority vote.

The question is presented whether the proceedings had by the common council relating to submitting Ordinance No. 126 to a vote of the people, and the subsequent adoption thereof, were effective to supersede section 100 of the original charter, in so far as it inhibits the city from entering into any contract or granting any franchise extending for a longer period than 10 years.

The then city attorney relates that he was requested to prepare and did prepare, a resolution for use by the council, submitting the proposals of the Condor Water & Power Company and Idaho-Washington Light & Power Company to a vote of the people, in the alternative, the company obtaining the highest vote to be entitled to the franchise; and that the resolution was duly adopted by vote of the council at the said meeting of May 14th. As to this, his recollection seems to be clear and reasonably...