City of Spokane v. Spokane & I.E.R. Co.

• Decision Date: 08 October 1913
• Citation: 135 P. 636,75 Wash. 651
• Court: Washington Supreme Court
• Parties: CITY OF SPOKANE v. SPOKANE & I. E. R. CO. et al.

135 P. 636

75 Wash. 651

CITY OF SPOKANE v. SPOKANE & I. E. R. CO. et al.

Supreme Court of Washington, En Banc.

October 8, 1913

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Mandamus proceedings by the City of Spokane against the Spokane &amp Inland Empire Railroad Company and others to compel elimination of a grade crossing. From a judgment for the defendants, plaintiff appeals. Affirmed.

H. M Stephens, of Spokane, for appellant.

Post Avery & Higgins, of Spokane, Geo. T. Reid, L. B. da Ponte, and J. W. Quick, all of Tacoma, E. J. Cannon, of Spokane, F. M. Dudley, of Seattle, and Graves, Kezer & Graves, of Spokane, for respondents.

MORRIS J.

In July, 1912, the city of Spokane passed an ordinance whereby it required the Spokane & Inland Empire Railroad Company, the Northern Pacific Railroad Company, the Chicago, Milwaukee & Puget Sound Railway Company, and the Washington Water Power Company, a local street railway company, to separate the grades of their tracks crossing Sheridan street between Front and Olive avenues, and crossing Olive avenue near its intersection with Sheridan street, 'from the grades of said streets and avenues by filling said streets and avenues, building retaining walls, abutments, viaduct, new bridge across and over the Spokane river, elevate the plane of said streets, and avenues, grade and fill the streets and avenues approaching or leading up to such separation of railroad tracks, from the surface or plane of said streets and avenues, of and for other traffic, and build, erect, construct and complete any and every other matter and thing required by or incident to, the profile, plans and specifications for said work,' which profile, plans, and specifications were incorporated into and made a part of the ordinance. Section 2 requires the doing of all of this work by these several corporations at their own expense, and the payment of all damages to adjacent property. Section 3 requires the work to be commenced within 30 days and completed within 18 months, and section 4 requires the maintenance of the construction work by the several corporations. The work was not undertaken by the several companies, each of them having notified the city of its intention not to comply with the ordinance. The city thereupon commenced this proceeding, praying the mandate of the court to issue requiring the several companies to comply with the provisions of the ordinance. Several demurrers were filed to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. Each of these demurrers was sustained, and the city appeals.

The complaint in addition to pleading the ordinance, sets forth: That the city of Spokane contains over 100,000 inhabitants; that through the midst of the city runs the Spokane river, so dividing the city that about one-half of its population resides to the north of the river. That but few arteries of public travel cross the river, by which this large population to the north may reach the business sections of the city. That one of these arteries is by way of Olive avenue, Sheridan street and Front avenue. That the Spokane & Inland Empire Railroad Company, maintains and operates its tracks across Sheridan street between Front and Olive avenues, operating about 60 interurban passenger trains, and about 380 electric street cars over said tracks at said point every 24 hours, making with the freight trains operated by the road an average crossing every 1 1/2 minutes between 8 o'clock a. m. and 5 o'clock p. m., and carrying & daily average of 8,000 people. That the Washington Water Power Company maintains a double track street railway upon Front avenue between Grant and Sheridan streets, and thence on Sheridan street between Front and Olive avenues, operating a car over the crossing at Sheridan street and Olive avenue every six minutes, and carrying a daily average of 80,000 people. That the Northern Pacific Railway Company operates a railroad track across Olive avenue near its intersection with Sheridan street and crossing the tracks of the Spokane & Inland Empire Railroad, and of the Washington Water Power Company. All of the above tracks are upon the surface of the streets and avenues, greatly impeding public traffic upon the streets, and rendering such streets and avenues extremely dangerous. That the Chicago, Milwaukee & Puget Sound Railway Company operates its trains through a tunnel, crossing beneath Front avenue and Sheridan street, under a franchise which provides that whenever the city should determine upon a separation of grades at this point it would pay its equitable proportion of the cost of such separation, as determined and estimated by the city. A like provision is found in the Northern Pacific franchise. Other allegations set forth the conditions of street traffic at the point in question; and after reciting that these various companies refuse to comply with the requirements of the ordinance, or agree among themselves as to the portion of the expense to be borne by each, the complaint prays that the railway companies be required to proceed with the work in accordance with the plans and specifications adopted by the city, and that they share the entire cost and expense, including all damage to adjacent property that may be recovered in such proportion as they may agree among themselves or the court determine.

It is stated in appellant's brief that the lower court sustained these several demurrers upon the ground that the ordinance pleaded as a part of the complaint was void as not within the power of the city, and that upon the authority of State ex rel. Webster v. Superior Court, 67 Wash. 37, 120 P. 861, the power to compel grade separations is exclusively vested in the Public Service Commission of the State of Washington. We can find nothing in the Webster Case that is decisive of any point here involved. We held in that case that the public utilities act of 1911 (Laws 1911, c. 117), providing for a public service commission with power to establish rates and charges for public service corporations, was a 'general law' within the meaning of sections 10, 11, art. 11, of the Constitution, authorizing the adoption of charters for their own government by municipal corporations subject to general laws, and providing for the enforcement of such police powers and regulations as are not in conflict with general laws, and that under this 'general law' the city of Seattle must yield its right to fix and control telephone rates to the Public Service Commission. It was never intended by anything that was said in that opinion to take away the police power from cities of the first class conferred upon them by the Constitution and laws of this state, except, in so far as the state by its general law had withdrawn that power and sought itself to exercise it. And so far as the authority of that case is concerned, or any other written by this court, it is still our opinion that cities of the first class have reserved to them all the powers conferred by Constitution or statute, except in so far as such powers have been limited or withdrawn by legislative act. Smith v. Spokane, 55 Wash. 219, 104 P. 249, 19 Ann. Cas. 1220; Shepard v. Seattle, 59 Wash. 363, 109 P. 1067, 40 L. R. A. (N. S.) 647.

That the power to compel grade separations is an exercise of the police power and a regulation affecting the public safety and welfare seems so clear to us that we shall not attempt to support it by authority. In fact, except in so far as it is...