Ewing v. City of Seattle

• Decision Date: 09 October 1909
• Citation: 104 P. 259,55 Wash. 229
• Court: Washington Supreme Court
• Parties: EWING v. CITY OF SEATTLE (SEATTLE ELECTRIC CO., Intervener.

104 P. 259

55 Wash. 229

EWING v. CITY OF SEATTLE (SEATTLE ELECTRIC CO., Intervener.

Supreme Court of Washington

October 9, 1909

Department 2. Appeal from Superior Court, King County; Geo. E. Morris Judge.

Action for injunction by Edwin C. Ewing against the City of Seattle and others, wherein the Seattle Electric Company intervened. From an order granting a temporary injunction, defendants and intervener appeal. Reversed.

Scott Calhoun, James E. Bradford, James B. Howe and R. G. Sharpe, for appellants.

Higgins, Hall & Halverstadt and Edwin C. Ewing for respondent.

PARKER, J.

This is an appeal from an order granting a temporary injunction restraining the defendants from proceeding further in their action towards granting to the intervener a franchise to construct and operate a street railway upon certain streets of the city of Seattle. The power to grant such franchise by the legislative branch of the city government is found in Laws 1903, p. 364, c. 175, as amended by Laws 1907, p. 192 c. 99, and, so far as applicable to this controversy, is as follows: 'The legislative authority of the city or town having control of any public street or road, or where such street or road is not within the limits of any incorporated city or town, then the board of county commissioners wherein such road or street is situated, may grant authority for the construction, maintenance and operation of electric railroads or railways motor railroads or railways and railroads and railways of which the motive power is any power other than steam, together with such poles, wires and other appurtenances upon, over, along and across any such public street or road and in granting such authority the legislative authority of such city or town or the board of county commissioners, as the case may be, may prescribe the terms and conditions on which such railroads or railways and their appurtenances shall be constructed, maintained and operated upon, over, along and across such road or street, and the grade or elevation at which the same shall be maintained and operated.' Section 23, art. 4, of the freehold charter of the city of Seattle, contains provisions, which it is claimed by plaintiff limit and control the exercise of this power, as follows: 'Sec. 23. The city council shall not grant authority to construct a street railway or lay down railroad tracks upon or over any of the streets of said city, except in the manner and on the terms following, that is to say: Upon the application being made to the city council for authority to construct and operate a street railway along and upon any of said streets, the city council shall, by resolution, determine whether such franchise, or any part thereof, shall be granted, and after such determination, shall cause notice of such application and resolution to be published for ten days in the city official newspaper, at the expense of the applicant, and shall in such notice specify the route over and along which it proposes to grant such franchise, and shall offer to grant the same to the person, company or corporation who will pay for the franchise the highest percentage annually of gross receipts, but not less than two per cent. per annum. Bidding for such franchise must be in accordance with the provisions of the charter in relation to bids made to the board of public works, so far as such provisions may be applicable, and the city council may reject any and all bids, and may refuse to grant a franchise for any part of the route for which the application was made. Each bid must be accompanied by a certified cheque, payable to the order of the city comptroller, for the sum of one thousand dollars, and the amount of the check shall be forfeited and paid to the city in case the successful bidder shall fail to accept the franchise, and upon acceptance the sum so paid shall be credited to the grantee on account of percentages. The same method of procedure shall obtain in the case of the extension of such franchise or any existing franchises.' With these statute and charter provisions before us, we will notice the undisputed facts as they appear by the pleadings and affidavits before the court upon the hearing of the application for the temporary injunction. Since our view of the case would be unaffected by the disputed facts, we need not notice them.

On November 9, 1908, the intervener made application to the city of Seattle for a franchise to construct and operate a street railway upon certain streets of the city, and thereupon there was introduced in the city council an ordinance for the granting of such franchise, wherein was fully prescribed the terms and conditions thereof, among other things providing: 'The grantee, its successors or assigns, shall pay annually to the city of Seattle ___ per cent. per annum of the gross receipts derived from the operation of said railway from and after the date of the acceptance of this franchise until its expiration, and, in addition thereto, shall pay annually to the city of Seattle, from and after the first day of January, A. D. 19__, and until the expiration of said franchise, an additional percentage of ___ per cent. of the gross receipts derived from the operation of said railway from and after said first day of January, A. D. 19__.' On December 7, 1908, the city council passed a resolution, by which it determined to grant such franchise, and thereupon caused notice of the application, resolution, and proposed ordinance granting the franchise to be published, inviting bids, as provided by the charter provisions above quoted. On January 4, 1909, in pursuance of the notice, bids were received by the council, when the intervener bid and offered to pay for the franchise 2 per cent. per annum of the gross receipts derived from the operation of the railway under the franchise until its expiration, and one per cent. per annum additional after January 1, 1920, until its expiration, and the plaintiff bid and offered to pay for the franchise 10 per cent. per annum of the gross receipts derived from the operation of the railway under the franchise until its expiration and 15 per cent. per annum additional after January 1, 1920, until its expiration. No other bids were received. Certified checks accompanied the bids as provided by the charter. On January 18, 1909, after considering the bids, the council accepted the bid of the intervener, and formally passed the ordinance granting the franchise to it. On January 19, 1909, the ordinance was by the clerk presented to Hon. John F. Miller, mayor, for his approval. On the same day the superior court issued a temporary restraining order, at the instance of plaintiff against the defendants, restraining the mayor from signing the ordinance or taking any action thereon other than to veto it, restraining the clerk from publishing it, and restraining the council from passing it over the mayor's veto until the further order of the court, and directing the defendants to show cause on January 29, 1909, why a temporary injunction should not issue enjoining them from doing any of said acts until the final hearing of the cause. On January 29, 1909, the cause came on for hearing upon the order to show cause, and, the matter being heard upon the pleadings and affidavits read in behalf of the respective parties, the court granted a temporary injunction, restraining the defendants until final hearing of the cause, substantially as in the temporary restraining order. From this action of the court, the defendants and intervener have appealed.

The grounds upon which the plaintiff sought to have the defendants enjoined are in substance that the council did capriciously, arbitrarily, without right, or power so to do in violation of his rights in the premises, and contrary to the provisions of the charter above quoted, determine that the bid of the intervener be accepted, and that the bid of the plaintiff be rejected; and did capriciously, arbitrarily, without right or power so to do, in violation of his rights in the premises, and contrary to the provisions of the charter, attempt to grant said franchise to the intervener by the passing of said ordinance. Several affidavits in behalf of the respective parties were read upon the hearing, both in support of and...