City of Edmonds v. General Tel. Co. of the Northwest, Inc., 5535-I

• Decision Date: 28 August 1978
• Docket Number: No. 5535-I,5535-I
• Citation: 21 Wn.App. 218,584 P.2d 458
• Parties: The CITY OF EDMONDS, an Optional Municipal Code City, Respondent, v.TI GENERAL TELEPHONE COMPANY OF the NORTHWEST, INC., a Washington Corporation, Appellant.
• Court: Washington Court of Appeals

Page 218

21 Wn.App. 218

584 P.2d 458

The CITY OF EDMONDS, an Optional Municipal Code City, Respondent,

v.TI GENERAL TELEPHONE COMPANY OF the NORTHWEST, INC., a

Washington Corporation, Appellant.

No. 5535-I.

Court of Appeals of Washington, Division 1.

Aug. 28, 1978.

C. Lee Coulter, Raymond J. Lee, Everett, John N. Rupp, Seattle, for appellant.

John D. Wallace, Wayne Tanaka, Seattle, for respondent.

GREEN, Judge.

The City of Edmonds brought this action against General Telephone Company of the Northwest to recover the amount expended by the City in converting General's overhead telephone lines along Fifth Avenue South to an underground system. The City based its action upon two ordinances. The first ordinance granted General a franchise to use city streets for its facilities on the condition that General bear the expense of undergrounding its lines when the City chose to improve a street. The second ordinance adopted a plan for the improvement of Fifth Avenue South and ordered General to commence undergrounding its lines located on that street. Following a trial to the court, judgment was entered in favor of the City. General appeals.

We reach only one issue: Did the City of Edmonds act within the scope of its police powers when it enacted an ordinance requiring General Telephone to underground its wires at General's expense?

General Telephone Company is the successor-in-interest of Edmonds Independent Telephone which began telephone service to the City of Edmonds in 1908. In 1909 the City granted the company a franchise for 25 years to use the City's streets in conducting its business. In 1934 the City granted the company a second 25-year franchise which expired in 1959. General operated without a franchise until June 22, 1975, when the City Council of Edmonds adopted Ordinance No. 1780. This ordinance stated, Inter alia :

Section 1. That there be, and there is hereby granted, upon the conditions set forth hereinafter to the successor in interest to the Edmonds Independent Telephone Company, the General Telephone Company of the Northwest, Inc., for the period of 20 years from and after the effective date of this ordinance, the right to maintain and operate a general telephone and telegraph system and facilities therewith in the City of Edmonds and the right to maintain existing facilities and place, erect, lay, maintain and replace the existing facilities by undergrounding the same along and under all of the streets, alleys, and other public highways of said City.

Section 6. All existing poles placed in any street or alley in the City, shall, at the time of improvement of said street or alley be removed and the grantee's facilities shall be undergrounded at the cost and expense of the grantee in an orderly manner in conjunction with the improvement.

Two weeks later, the council enacted Ordinance No. 1781 authorizing the improvement of Fifth Avenue South, a major arterial carrying traffic into downtown Edmonds. The proposed improvement included the construction and repair of sidewalks and curbs, landscaping, and possible resurfacing of the street. The ordinance further provided that overhead telephone, electric, and cable TV lines be undergrounded in conjunction with the improvement. The ordinance stated the council found that the poles used to support the overhead facilities were an obstruction to pedestrian traffic and might constitute a hazard to vehicles leaving the traveled portion of the roadway. ¹

General refused to comply with the ordinance, contending that its purpose was beautification and that it amounted to an unlawful condemnation of its property. In order that the street improvement might proceed on schedule, the telephone company agreed that the City would pay for the work without prejudicing its position before the court. The trial from which this appeal is taken followed.

At trial, Vincent Graham, District Manager for General Telephone, testified that, to his knowledge, no accidents had been reported involving a utility pole and a motor vehicle on Fifth Avenue South. On cross-examination, he estimated the life of the poles at 10 years and admitted that undergrounding at that later date would involve digging up the streets and sidewalks.

William Brill, the engineering construction supervisor for the company, testified that the poles stood from 6 inches to 2 feet off the traveled portion of the City's streets. However, he noted that numerous objects, including street signs, mailboxes, fire plugs, litter cans, and planters remain on the street as potential hazards to vehicular traffic. He further stated that a downed telephone wire would not expose anyone to an electric shock, but admitted that the combined cables weighed from 5 to 10 pounds per foot and that the poles were placed about 100 feet apart. On cross-examination, Mr. Brill agreed that removal of the aerial facilities would lessen the hazard to the motoring public, and that coordination of the undergrounding with the other utilities would minimize disruption of traffic, would avoid damage to improvements that might be caused by doing the work at a later time, and would save the company money because it would be able to use tunnel trenches constructed during the course of improvements.

The trial court concluded that the City of Edmonds had acted within the scope of its police power when it required the company to underground at its own expense and accordingly entered judgment for the City. We affirm.

Washington Constitution, art. 11, sec. 11, provides:

Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.

The general law governing the placement of telephone lines is RCW 80.36.040, which states

Any . . . telephone . . . company . . . doing business in this state, shall have the right to construct and maintain all necessary lines of . . . telephone for public traffic along and upon any public road, street or highway, along or across the right-of-way of any railroad corporation, and may erect poles, . . . wires and any other necessary fixture of their lines, In such manner and at such points as not to incommode the public use of the railroad or highway . . .

(Italics ours.) General argues that the italicized provision limits a city's exercise of its police power to preventing the physical obstruction of a street. We believe this is too narrow a construction of this statute. In our view, the intent of the legislature is to leave the manner in which a company erects and maintains its lines within a city subject to the reasonable and proper exercise of the municipal police power. See City of Seattle v. Western Union Telegraph Co., 21 Wash.2d 838, 858, 153 P.2d 859 (1944).

In determining whether the two ordinances at issue in the present case constitute a reasonable and proper exercise of the police power of the City of Edmonds, we apply the two-step test as set forth in State v. Conifer Enterprises, Inc., 82 Wash.2d 94, 96-7, 508 P.2d 149 (1973). First, do the ordinances tend to promote the health, safety, or general welfare of the people? Specifically, do they tend to correct some evil or promote some interest of the City? Second, do the ordinances bear a reasonable and substantial relation to accomplishing the purpose established in step one?

The Conifer court noted that in instances where the law in question does not include a recital of the facts upon which the legislation is based, the court may engage in certain presumptions. That is, if the court can reasonably conceive of a state of facts which justify the legislation, those facts will be presumed to exist, and it will be presumed that the statute was passed with reference to those facts. In addition, two other rules guide judicial review of the State's exercise of the police power: (1) The party challenging the constitutionality of the act bears the burden of establishing its invalidity beyond all reasonable doubt, and (2) Every presumption will be in favor of constitutionality. State v. Conifer Enterprises, Inc., supra at 97, 508 P.2d 149; Salstrom's Vehicles, Inc. v. Department of Motor Vehicles,87 Wash.2d 686, 691, 555 P.2d 1361 (1976); Aetna Life Ins. Co. v. Washington Life and Disability Ins. Guaranty Ass'n, 83 Wash.2d 523, 528, 520 P.2d 162 (1974); Lenci v. City of Seattle, 63 Wash.2d 664, 667, 388 P.2d 926 (1964).

Here, the court can conceive of a state of facts which would justify the ordinances. Traffic on nearly all streets and highways has increased considerably in recent years. With this increase in traffic has come an increase in accidents. Collisions with solid objects in proximity to the traveled portions of our streets and highways enhance the injuries resulting from these accidents. ² Furthermore, street obstructions created while carrying out improvements or while repairing, replacing, or relocating utility poles and wires increase the risk of accident. Requiring that all wires be placed underground at the same time that the street is improved promotes the public's safety by reducing the number of times a street must be blocked. In essence, these are the facts found by the trial court, and these findings stand unchallenged.

In our judgment, the ordinances are a valid exercise of the City's police power. Their purpose is to promote the public safety, and the means employed bear a reasonable and substantial relation to accomplishing that purpose. ³

We do not find General's arguments for a contrary result convincing. First, General contends that City Ordinance No. 1780, upon which Ordinance No. 1781 is based, is a nullity because it purports to grant a franchise for the company's use of the city streets. General asserts that it occupies the streets by reason of a state franchise under Washington Constitution art. 12, sec. 19, ⁴ and RCW 80.36.040. We note that past decisions have construed RCW 80.36.040 as requiring a city's...