City of Tacoma v. Boutelle

• Decision Date: 04 January 1911
• Citation: 61 Wash. 434,112 P. 661
• Parties: CITY OF TACOMA v. BOUTELLE.
• Court: Washington Supreme Court

112 P. 661

61 Wash. 434

CITY OF TACOMA v. BOUTELLE.

Supreme Court of Washington

January 4, 1911

Department 2. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

F. A Boutelle was convicted of violating an ordinance of the City of Tacoma, and he appeals. Affirmed.

B. S. Grosscup and W. C. Morrow, for appellant.

T. L. Stiles, F. R. Baker, and F. M. Carnahan, for respondent.

MORRIS J.

Appellant the superintendent in charge of the running and operation of the street car system of the city of Tacoma belonging to the Tacoma Railway & Power Company, was convicted of a violation of Ordinance No. 3883 of said city, and prosecutes this appeal. Said ordinance is as follows:

'An Ordinance Regulating the Operation of Certain Street Cars in the City of Tacoma by the Tacoma Railway & Power Company, and Providing a Penalty for the Violation Thereof.

'Whereas, the street railway service rendered by the Tacoma Railway & Power Company over its line from South Ninth street to Union avenue, South Tacoma, along 'C' street, Jefferson avenue, Pacific avenue, Delin street, 'G' street, South 38th street, 'M' street, South Fifty-Sixth street, Railroad street and South Fifty-Fourth street is inadequate, in that a sufficient number of cars are not operated to accommodate the number of passengers:

'Now, therefore, be it ordained by the city of Tacoma:

'Section 1. That from and after October 5th, 1909, the Tacoma Railway & Power Company, its managers, servants and agents, be required to operate at least one passenger street car each way every ten minutes between South Ninth street and Union avenue (South Tacoma), between the hours of 5:30 o'clock a. m., and 12:30 o'clock a. m., following, and one car each way every five minutes between the hours of 6 o'clock and 8 o'clock a. m., and between the hours of 5 o'clock and 7:30 o'clock p. m., over its line along South 'C' street, Jefferson avenue, Pacific avenue, Delin street, 'G' street, South Thirty-Eighth street, 'M' street, South Fifty-Sixth street, Railroad street and South Fifty-Fourth street.

'Sec. 2. Every person violating the provisions of this ordinance shall, on conviction thereof, be fined in any sum not exceeding one hundred dollars.

'Sec. 3. Each day's failure of said Tacoma Railway & Power Company to comply with the provisions of this ordinance shall constitute a separate offense.'

Appellant urges two grounds of error: (1) The ordinance is unconstitutional, and violates the guaranties of both the state and federal Constitution, in that it seeks to impair the obligations of a contract, and to deprive the street railway company of its property without due process of law; and (2) the city was without authority to pass the ordinance, it was not authorized under the specific provisions of the city charter conferring power over street railways, nor can it be sustained as a valid exercise of the police power. The street railway line referred to in the ordinance, from South Ninth street to Union avenue, South Tacoma, is known as the South Tacoma line, and is operated over portions of 10 different streets. The right to operate over these different streets was conferred by three different ordinances, passed at as many different times, and containing different provisions and conditions affecting the franchise therein granted. The tracks on Jefferson avenue, Pacific avenue, and C street are operated under franchise granted by Ordinance No. 152 as amended by Ordinance No. 238. This ordinance was passed in 1887, and section 5, as amended in 1889, provides as follows: 'The city council may regulate the speed for running the cars and may require the cars to be run on or over the lines of said railways sufficient round trips each day, and no cars shall be allowed at any time to stop and remain upon any intersection of streets for a longer period than three minutes, and any violation of the provisions of this section shall subject the owners of said railways to a fine of not less than five or more than twenty-five dollars for every offense upon conviction thereof before any court having jurisdiction.' The tracks on Delin and G streets are operated under Ordinance No. 188, passed in 1888, section 6 of which is as follows: 'The city council may regulate the speed for running the cars and may require cars to be run two round trips each day on all completed portions of said railway after one mile thereof is completed. No car shall be allowed at any time to stop or remain upon any street intersection. The fare upon said railway over the whole, or any part thereof, shall not exceed five cents for each passenger, including ordinary hand baggage. Any violation of the provisions of this section shall subject the owners of said railway to a fine of not less than five or more than twenty-five dollars for every offense, upon conviction thereof before any court having jurisdiction.' The franchise for the remaining street was granted by Ordinance No. 860, passed in 1893, section 12 of which is as follows: 'Nothing in this ordinance shall be so construed as to prevent the city council of the city of Tacoma from passing all ordinances and resolutions necessary for the protection of the interests of the city, and to carry out the spirit and provisions of this franchise or ordinance, or from granting to any other street railway the right to cross the tracks of the line or lines of this railway at the same grade.'

Appellant's contention is that Ordinance No. 3883, in providing for a five-minute service over the entire South Tacoma line, is an attempted impairment of the obligation of the contracts between the city and the railway company, as established by the various franchises; that, as to the first group of streets, the city is not authorized by the franchise to determine what shall be 'sufficient round trips each day,' as provided for in section 5, supra; that such clause does not confer upon the council the right to determine arbitrarily the number of round trips each day that will be sufficient, but that the determination of that matter presents a judicial, rather than a legislative, question; that, as to the second group of streets, the provision of section 6, supra, investing the city council with power to 'require cars to be run two round trips each day,' is a manifest expression of intention on the part of the council; that it reserved no authority to require a more frequent service than two round trips a day; that the third group of streets controlled by the provisions of section 12, supra, have no reservation whatever as to any authority in the council to require any specific degree of service, or to determine what should be a sufficient service, there being no expressed intention in section 12 to reserve any such power; that inasmuch as, in the ordinances governing the first two groups of streets, a specific authority had been declared, the omission of such declaration in the ordinance governing the third group was intentional and deliberate. The suggestion first advanced in support of these contentions is that a franchise grant to a public service corporation is in the nature of a contract, equally binding upon both the city and the railway company, and that an attempt of the city to abrogate any of the rights conferred by the passage of a subsequent ordinance is an impairment of a contract obligation, and hence void. So far as being a correct statement of the law, the above position may be admitted, but in our opinion it has no place in the determination of the question before us.

A good illustration of the correct application of the above rule of law may be found in Minneapolis v. Minn. St. Ry. Co., 215 U.S. 417, 30 S.Ct. 118, 54 L.Ed. 259, cited by appellant as supporting his application of the rule. In 1875 the city of Minneapolis gave a franchise to the railway company for 50 years, by the terms of which the company had the right to charge a fare not exceeding five cents on any continuous line not exceeding three miles in length. In 1907 the city council enacted an ordinance requiring the railway company to sell 6 tickets for 25 cents, which ordinance was held to be void as impairing the obligation of a contract. The right to charge a five-cent fare was a specific grant of the franchise, and the city could no more violate such a specific grant than it could abrogate the franchise itself. As was said by Chadwick, J., in Peterson v. Tacoma Ry. & Power Co., 111 P. 338, in reviewing this same case: 'The right to charge the fare provided in the franchise was of the essence of the contract, and that it could not be abridged by the city.' We have confronting us in the present case no attempt on the part of the city to change or destroy by Ordinance No. 3883 any specific or implied right vested in the railway company under any previous ordinances; but rather an enactment under a general power expressly reserved in each of the original ordinances.

The fact that the provisions of Ordinance No. 3883 are more specific than the expression of the general power reserved in the initiating ordinances does not destroy the specific enactment, but leaves for determination the question whether such specific requirement is reasonable. If so, it will be sustained; if not, it will be held invalid. Elliott on Railroads, 1624. And 'the question of reasonableness usually resolves itself into this: Is the regulation carried to a point where it becomes prohibition, destruction, or confiscation?' Freund on Police Power, 61. Reasonableness in this connection is a question of fact, and will be presumed; the burden of proof being upon those asserting unreasonableness of which there was no evidence in this case. In People v. Detroit Citizens' St. Ry. Co., 116 Mich. 132, 74 N.W. 520, an...