City and County of San Francisco v. Market St. Ry. Co.
| Decision Date | 07 September 1938 |
| Docket Number | No. 8245.,8245. |
| Citation | 98 F.2d 628 |
| Parties | CITY AND COUNTY OF SAN FRANCISCO et al. v. MARKET STREET RY. CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John J. O'Toole, City Atty., and Henry Heidelberg, Deputy City Atty., both of San Francisco, Cal. (George Olshausen and Joseph C. Sharp, both of San Francisco, Cal., of counsel), for appellants.
William M. Abbott, Walter H. Linforth, and William M. Cannon, all of San Francisco, Cal., for appellee.
Before WILBUR, DENMAN, and HANEY, Circuit Judges.
The constitutionality of an ordinance of the City and County of San Francisco, requiring street cars while carrying passengers in that city to "be in charge of a motorman and a conductor" is here involved. The decree from which the appeal is taken adjudged the ordinance unconstitutional.
Market Street is 76½ feet wide between curbs, and runs northeasterly through the principal business district in the city. In that business district, the intersecting streets to the southeast extend at right angles from Market Street, and are crossed by others running parallel thereto. To the northwest of Market Street, all the streets that form the rectangular blocks are laid out to end at Market Street, one series running west at an acute angle and the cross streets running north at an obtuse angle. The residential area is laid out for the most part in lots, 25 feet wide, and lies to the west and south of the business district.
There are many hills in San Francisco. There are lines on streets having from 9% to 15.6% grades. Its area is about 42 square miles. Its boundary on the west is the Pacific Ocean, and on the north and east its boundary is San Francisco Bay. Many people living across the bay, and south of the city commute daily to and from the city. Its population in 1930 was 634,934.
Cable cars were first used in San Francisco because of the steepness of grades.
The first street railway cars in San Francisco were horse-drawn cars. Cable cars then came into existence. About 1906, electrification of the cars began. During all its history, until recently, several things became traditional: (1) five-cent fare; (2) an open rear door; (3) a crew of two men.
Appellee orginated in 1893 as a consolidation of eleven street railway companies. Others remained in operation.
The franchise of a private cable company came to an end a few years before 1912. Appellant reconstructed the line, and extended it to the Ferry Building, at the foot of Market Street, and began operation on December 28, 1912. Later appellant began to build tracks paralleling those of appellee on Market Street. Appellee attempted, but failed, to prevent that construction. United Railroads v. San Francisco, 249 U. S. 517, 39 S.Ct. 361, 63 L.Ed. 739. At present there are three concerns furnishing street railway transportation. Appellee has 256 miles of track in the city, of which 13 miles are for cable cars, and some bus lines. Appellant has 71 miles of track, and some bus lines. The other concern has 11 miles of track for cable cars.
There are four tracks on Market Street. The two inside tracks are owned by appellee, and the two outside tracks are operated by appellant. These tracks end at the Ferry Building on the Embarcadero. There is danger and inconvenience for passengers crossing the outer tracks to board appellee's cars.
In the morning and evening there is a great deal of traffic, some down Market Street to the Ferry Building, and some in the opposite direction to the residential area.
The number of revenue passengers carried by appellee has steadily declined since 1925, as shown by the following:
No. of
Year Passengers
1925 198,277,586
1929 194,429,264
1930 186,459,628
1931 174,390,494
1932 158,781,252
1933 150,942,403
1934 148,614,851
1934 (first 6 months) 76,803,612
1935 (first 6 months) 74,386,090
A corresponding decline of revenues is shown.
The special master found the value of appellee's physical property to be in excess of $24,000,000, and other assets in the sum of $620,614.69. He found the liabilities to be $8,065,800.25, consisting of bonds in the sum of $6,190,500, current liabilities in the sum of $440,642.45.
The decline in earnings was attributed to the competition of automobiles and appellant's operation, and to the economic depression. Appellee has curtailed its service, and expenditures for repairs and maintenance. Its depreciation reserve is inadequate. The special master found: "A foreclosure and receivership can be avoided by increased borrowing on the part of * * * appellee, by increased revenue, or by a decrease in operating expense" and that if appellee could use "one-man" cars, it could save approximately $500,000 annually.
There was evidence that appellant's system was making a profit. The special master found that because of several things, its system was not comparable to appellee's and that it also operated at a loss.
The competition of appellant's system, said the special master,
On July 15, 1934, appellee's employees went on strike, which lasted thirteen days. The dispute was referred to a Board of Arbitrators which made an award, on December 14, 1934, effective February 1, 1935 for two years. Increase in wages was granted in the approximate sum of $750,000 annually. The Board recommended that the fares on both systems be increased, saying: "The present situation is untenable and intolerable."
The City and County of San Francisco enacted an ordinance approved October 23, 1908, entitled: "Ordinance No. 581 (New Series) regulating street railroads and cars in the City and County of San Francisco, by prescribing rules and regulations for the protection of the public from danger and inconvenience in the operation of such railroads". Ordinance 4679 (New Series) approved August 20, 1918 amended No. 581, and added thereto the following:
On March 12, 1935, appellee filed the bill herein. It alleged that when Ordinance No. 4679 was adopted "one-man safety cars were in their experimental stage"; that since then they "have been perfected and are so designed as to be capable of safe and efficient operation by one man" and that "by reason thereof, said ordinance as amended has become arbitrary, unreasonable and unnecessary for the safety and convenience of the public". It alleged that the "one-man" cars were safer than the "two-man" cars because: (1) of the placing of responsibility on one man; (2) the elimination of the human element and substitution therefor of automatic devices of control; (3) the elimination of confusion with regard to signals between conductor and motorman.
The automatic devices mentioned were: (1) "dead man control" which is a device which automatically applies the brakes, cuts off the power and balances the doors, so that they can be operated by hand, when hand and foot controls are both released; (2) improvements in brake equipment; and (3) the "treadle door" which automatically opens the door when, actuated by a passenger's body, only when the car is not moving.
It was also alleged that schedules were improved by "one-man" cars because more cars could be operated.
Other allegations need not be mentioned. Appellee prayed that appellant, its officers, agents and employees, be enjoined from enforcing the statute. A temporary restraining order was issued and subsequently a temporary injunction. Since then, appellee has operated some "one-man" cars.
On March 26, 1935, appellant's Board of Supervisors ordered that an initiative ordinance be submitted to vote of the people. On May 2, 1935, the ordinance was passed by a vote of 100,576 to 33,263, and provided:
The special master found that a passenger on one of appellee's cars on Market Street might alight either at the front, or the rear of the car. If he alights at the front, he must either pass in front of appellant's car, usually standing alongside (a course accompanied by the danger that the car will start with a change of traffic signals), or stand between the two cars in a narrow space while the cars move (a dangerous practice). The danger is greater if several passengers alight. If the passenger alights at the rear of the car the danger is less, because he crosses to the safety zone ahead of any approaching car and behind a standing car belonging to appellant. A passenger may also board appellee's cars at the front thereof on the inside track. If one of appellant's cars proceeds while...
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