Commercial Elec. Light & Power Co. v. City of Tacoma

• Citation: 50 P. 592,17 Wash. 661
• Court: Washington Supreme Court
• Decision Date: 05 October 1897
• Parties: COMMERCIAL ELECTRIC LIGHT & POWER CO. v. CITY OF TACOMA ET AL. [1]

50 P. 592

17 Wash. 661

COMMERCIAL ELECTRIC LIGHT & POWER CO. v. CITY OF TACOMA ET AL. ^[1]

Supreme Court of Washington

October 5, 1897

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by the Commercial Electric Light & Power Company against the city of Tacoma, A. V. Fawcett, as mayor, and Thomas E Doherty, as commissioner of public works, to restrain defendants from further removing plaintiff's wires from poles belonging to the city, and from interfering with the replacement of those which had been removed. From a decree in favor of plaintiff, defendants appeal. Affirmed.

John A. Shackleford, J. S. Whitehouse, and C. A Murray, for appellants.

Stiles & Stevens, for respondent.

ANDERS, J.

The city council of the city of Tacoma passed an ordinance, No 318, approved May 31, 1890, and entitled "An ordinance granting to the Tacoma Electric Company and its assigns the right to erect poles and stretch wires thereon for electric purposes." Section 1 of this ordinance provides as follows: "That there be and is hereby granted to Tacoma Electric Company and to its assigns the right, privilege authority and franchise to locate, erect, place, maintain and use in the streets and alleys, within the city of Tacoma poles with necessary cross-arms, and thereon to fasten wires and to stretch such wires through said streets and alleys, and to maintain and use such wires for the purpose of thereby transmitting, distributing and furnishing to consumers thereof electric currents for the production of heat and power and for any and all other purposes to which electric currents can or may be put, throughout the streets, alleys and other public places and the public and private buildings of the said city under the supervision of the city council or an officer empowered by said city council." Section 8 reads as follows: "That all the privileges hereby conferred upon and granted to said Tacoma Electric Company and its assigns shall continue for twenty-five (25) years from the time when this ordinance goes into effect, subject however to the reservations set forth in section 6 of this ordinance." The reservation referred to in section 8 was the right to substitute the privilege of laying and maintaining such wires in underground conduits, instead of upon poles, as specified in the first section. It was further provided in this ordinance "that said Tacoma Electric Company shall, within ten days after the adoption of the ordinance, file with the city clerk its acceptance of the franchise herein granted, *** and shall also file a bond in the sum of twenty thousand dollars ($20,000), to be approved by the mayor"; and it is conceded that the Tacoma Electric Company complied with these conditions within the time limited. On January 21, 1891, the Tacoma Electric Company duly sold, assigned, and conveyed to the plaintiff herein all its rights, privileges, and franchises under and by virtue of said ordinance numbered 318. Thereafter, and on the 21st day of January, 1892, the plaintiff entered into a contract with the Tacoma Light & Water Company, a corporation engaged in the business of furnishing electric light to the inhabitants of the city of Tacoma under a franchise granted to it by said city, by which it was mutually agreed that each of said companies should have the right and privilege to place and maintain its electric wires upon certain poles of the other for the period of three years, and until after 60 days' notice of intention to terminate the contract. In pursuance of this agreement, each of said companies placed and maintained certain of its wires upon the poles belonging to the other. Subsequently, and in the year 1893, the Tacoma Light & Water Company sold to the defendant city its electric light plant, including the poles upon which plaintiff's wires were stretched and operated in pursuance of the above-mentioned contract. After the city took possession of the electric light plant so purchased by it, and in the month of January, 1894, according to the finding of the trial court, it was apprised of the terms of the contract between the plaintiff and the Tacoma Light & Water Company, and assented thereto, and never at any time gave the proper notice to terminate the same. During the years 1895 and 1896, however, certain of the city officials, without any apparent authority from the council, notified the plaintiff to remove its wires from the city's poles. This the plaintiff refused to do, and on the night of July 10, 1896, the defendants Fawcett and Doherty, claiming to act by virtue of their authority as mayor and commissioner of the board of public works, respectively, caused the employés of the city to detach all the wires of plaintiff which were then upon the poles of the city, and thereby rendered the same unfit for use in the distribution of electricity by plaintiff to its customers. On the following day, plaintiff undertook to replace its wires so torn down, and was prevented from doing so by the defendants; whereupon it instituted this action to restrain the defendants and their employés from further removing plaintiff's wires, and also from interfering with their replacement. Upon the trial the court awarded an injunction, restraining the defendants from in any manner interfering with the plaintiff in replacing its wires as and where they were upon the poles of the city, on the 10th day of July, 1896, and from terminating, or attempting to terminate, or giving notice to terminate, the agreement for the joint use of poles until the plaintiff had had five days' time, without hindrance or obstruction by defendants, in which to replace its wires. From this judgment and decree, the defendants have appealed to this court.

It is claimed by appellants that, during the course of the trial in the court below, the plaintiff was permitted to amend, by interlineation, paragraph 6 of its complaint, so as to make it read, in effect, that the Tacoma Electric Company and its successor complied with all of the conditions of said ordinance, etc., and that defendants thereupon interposed a general demurrer to the complaint, and that the court erred in overruling the same. No demurrer appears in the record, but the record does disclose an order overruling the demurrer to the complaint. We are therefore justified in concluding that such demurrer was interposed and overruled. But we are of the opinion, for reasons which will hereafter appear, that the demurrer was properly overruled.

It is next contended by appellants that the Tacoma Electric Company, and also the respondent, forfeited whatever rights they or either of them obtained by virtue of Ordinance No. 318, by noncompliance with the conditions therein expressed. Section 7 of said ordinance provided that said Tacoma Electric Company should, within 15 months after the passage of the ordinance, construct so much of their electric plant as would furnish power, heat, and light to all the business portion of the city, and should expend in said construction not less than $50,000 the first year; and section 11 provided "that if, at the expiration of the time given by this ordinance to make the improvements and expenditures as above set forth, the same have not been made, then this franchise is hereby declared to be forfeited, and this ordinance becomes null and void"; and the contention of appellants is that the forfeiture declared in the ordinance is self-executing, and that all the rights and privileges thereby granted were ipso facto forfeited. It is not contended by the respondent that the Tacoma Electric Company erected or put in operation an electric light plant in the city of Tacoma within the time specified in the ordinance, or at all, but its contention is that it did comply with all of the conditions imposed by the ordinance.

The trial court found as a fact that the respondent, as assignee of the franchise granted to Tacoma Electric Company, did within the time prescribed by section 7 of said ordinance, construct such an electric plant as would furnish heat and light to all the business portion of the said city of Tacoma, and did expend in said construction more than the sum of $50,000, and that said plant was in operation on or before September 1, 1891. We think the evidence fully justifies the finding of the court. But appellants insist that it...