Pacific Tel. & Tel. Co. v. City of Everett

• Decision Date: 17 July 1917
• Docket Number: 13411.
• Citation: 166 P. 650,97 Wash. 259
• Court: Washington Supreme Court
• Parties: PACIFIC TELEPHONE & TELEGRAPH CO. et al. v. CITY OF EVERETT et al.

166 P. 650

97 Wash. 259

PACIFIC TELEPHONE & TELEGRAPH CO. et al. v. CITY OF EVERETT et al.

No. 13411.

Supreme Court of Washington, En Banc.

July 17, 1917

Appeal from Superior Court, Snohomish County; Guyle Alston, Judge.

Action by the Pacific Telephone & Telegraph Company and another against the City of Everett and others.From an order sustaining a demurrer to the complaint, plaintiffs appeal.Reversed and remanded, with directions.

Hughes McMicken, Dovell & Ramsey and Otto B. Rupp, all of Seattle for appellants.

Wm. A Johnson, of Everett, for respondents.

FULLERTON J.

On May 12, 1896, the city council of the city of Everett, by ordinance duly enacted, granted to the appellantSunset Telephone & Telegraph Company a franchise, subject to certain conditions and regulations, empowering it to erect and maintain within the corporate limits of the city named a telephone and telegraph system.The ordinance, omitting its formal parts, is as follows:

'Section 1.There is hereby granted to the Sunset Telephone & Telegraph Co., its successors and assigns, the right to erect poles and stretch thereon wires and similar conductors for the transmission of electricity within the city of Everett, and maintain same for telephone and telegraph purposes.

'Sec. 2.Such wires and conductors shall be stretched on said poles at a sufficient height as not to interfere with the free use of the streets and alleys by the public, and the poles shall be erected at the edge of the sidewalk and at such points as shall be designated by the city council, and shall keep the poles painted and substantially erected.

'Sec. 3.The said grantee may make such excavations in the streets and alleys necessary for erecting and repairing such poles and wires, subject at all times to the rules, ordinances and resolutions of the city council, and the said council shall reserve the right to cause said grantee, its successors and assigns, to move the location of any pole, wire and conductors wherever it deems the public interests shall require the location elsewhere having due regard to the equities of the parties concerned; the expense of such removal to be borne and paid for by the grantee.

'Sec. 4.The wires and conductors shall be promptly [properly] insulated, and carefully and firmly fastened, so as not to come in contact with any object, and whenever the surface of the streets or alleys shall be broken by any excavation or repairs, the grantee shall immediately restore same to its proper condition.

'Sec. 5.Whenever any person has obtained permission from the city to move any building or structure, said grantee shall upon twenty-four hours' notice in writing, raise or remove wires or conductors to permit the free passage of such building and upon refusal of grantee to make compliance of such notice, the street commissioner shall, upon proof of such notice, raise such wires or conductors at the expense of the grantee.

'Sec. 6.The grantee shall not charge its patrons for putting in its telephones and shall never charge monthly rentals in excess of rentals charged by grantee in any city of like population on Puget Sound but nothing shall prevent the grantee requiring its patrons to pay at least three months in advance from first connecting such telephones.

'Sec. 7.Nothing herein shall be construed to prevent the city of Everett and its proper authorities from sewering, guttering, or improving its streets and alleys and for that purpose to require the grantee to remove its poles, wires and connections to confirm thereto and facilitate the same; and nothing herein shall be construed to grant to grantee, its successors and assigns, an exclusive right to erect and maintain its poles, wires, conductors and connections for the purpose specified herein.

'Sec. 8.The grantee, its successors and assigns, is hereby given permission to place all or any of its wires underground at any time, and when the city of Everett has grown to a population of twenty-five thousand the wires of said grantee must be placed underground within such limits as may be deemed reasonable by the council.The grantee in doing any underground work is to carry out the same in expeditious and workmanlike manner subject to the ordinance and police regulations of the city of Everett.

'Sec. 9.In consideration of the rights herein granted, the city of Everett shall have the right to suspend and maintain on the poles of the grantee, its successors and assigns, all wires which it may require for fire alarm and police telegraph purposes.

'Sec. 10.The grantee shall within thirty days from the adoption of this ordinance file with the city clerk its acceptance of this franchise which is granted subject to its conditions.

'Sec. 11.The grantee shall furnish all telephones required for the city's use at the rate of two-thirds the price charged private individuals, and in no case to exceed the charge of two dollars and sixty-five cents per month for each telephone required for the city's use.

'Sec. 12.The right herein granted shall continue to be in force for twenty-five years from and after the passage of this ordinance.

'Sec. 13.The failure of the grantee to comply with the provisions herein shall operate as a forfeiture of the rights herein granted.'

Within the time limited by the ordinance the grantee named therein filed with the city clerk its acceptance of the franchise granted, and thereafter, at great expense to itself, installed within the city a telephone and telegraph system, during the course of which it erected a large number of poles on the streets and alleys of the city along which it stretched wires for the transmission of electricity.Subsequent to the installation of the plant the grantee leased the same to its coappellant, the Pacific Telephone & Telegraph Company, which is now operating the same.The companies have at all times complied with the terms and conditions of the ordinance; their property within the city of Everett has been regularly assessed for state, county, school, and city taxes on an ad valorem basis as prescribed by the stateConstitution, which taxes it has duly and regularly paid.

The city of Everett, while a city of a lesser class at the time of the granting of the franchise mentioned, subsequently so far increased in population as to be entitled to become a city of the first class, with the privilege of framing its own charter.On April 16, 1912, advantage was taken of the privilege, the city framing and adopting a chapter in accordance with the authorization found in section 10, art. 11, of the state Constitution.Section 148 of the charter so adopted reads as follows:

'A minimum tax of fifty cents per annum shall be levied and collected upon each telegraph, telephone, electric light or other pole in or upon any street, alley or other public place of the city of Everett: Provided, that this section shall not apply to metal poles supporting cluster lights.'

On May 14, 1915, acting under and in pursuance of the foregoing provision of the charter, the city council of the city of Everett enacted the following ordinance (formal parts omitted):

'Section 1.That it shall be the duty of every person, firm or corporation maintaining or using any telegraph, telephone, electric light or other pole in or upon any street, alley or other public place in the city of Everett to pay to the city treasurer of the city of Everett on or before the first day of July, 1915, and on or before the first day of July of each and every year thereafter, a license tax of fifty cents for each pole so maintained or used, and secure a license to so maintain such pole or poles; provided, that this section shall not apply to metal poles supporting cluster lights; and providing, further, that if two or more persons, firms or corporations are using the same pole, the person, firm or corporation owning or leasing such pole shall pay the license tax herein provided for.

'Sec. 2.That upon the payment of such tax as herein provided, to the city treasurer of the city of Everett, said treasurer shall issue a receipt therefor, and upon the presentation of such receipt to the city clerk of said city, said clerk shall issue to said person, firm or corporation paying such tax a license to maintain the pole or poles for which such license tax is paid, for the year for which such tax is paid.

'Sec. 3.The city council of the city of Everett shall not issue a permit to erect any pole or poles in or upon any public street, alley or other public place within the city of Everett to any person, firm or corporation who has not paid the license tax as herein provided for.

'Sec. 4.If any person, firm or corporation fails to pay the license tax herein previded for, the city of Everett may bring suit to recover the same, in the superior court of Snohomish county.

'Sec. 5.Any person, firm or corporation, who violates any of the provisions of this ordinance, shall, upon conviction, be punished by a fine of not to exceed one hundred ($100) dollars, or by imprisonment in the city jail for a period of thirty (30) days, or by both such fine and imprisonment, and each day that any person, firm or corporation shall continue to violate or fail to comply with any of the provisions of this ordinance, shall be deemed and considered a separate offense.'

The city thereafter threatened to enforce the provisions of the ordinance, whereupon the present action was begun to enjoin it from so doing.The complaint of the appellants, after appropriate allegations setting forth the foregoing facts further alleged that there is no statute of the state of Washington, provision of the charter, or ordinance of the city of Everett authorizing or providing for the inspection of poles such as the plaintiff's poles are, that no...