Peterson v. Tacoma Ry. & Power Co.

• Decision Date: 29 October 1910
• Citation: 111 P. 338,60 Wash. 406
• Court: Washington Supreme Court
• Parties: PETERSON v. TACOMA RY. & POWER CO.

111 P. 338

60 Wash. 406

PETERSON v. TACOMA RY. & POWER CO.

Supreme Court of Washington

October 29, 1910

Department 2. Appeal from Superior Court, Pierce County; John A Shackleford, Judge.

Action by E. E. Peterson against the Tacoma Railway & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

B. S Grosscup, Jas. B. Howe, and Wm. C. Morrow, for appellant.

Fitch &amp Jacobs and T. L. Stiles, for respondent.

CHADWICK, J.

In its inception the present Tacoma Railway & Power Company acquired control of various lines of street railway operating under a number of distinct franchises in the city of Tacoma. These lines operating independently were under no obligation unless so provided in the franchise, to exchange or transfer passengers from one to the other. In consequence great confusion was put upon the citizens. Transfers would be allowed some from one line to another, and denied upon the same lines to others. Transfers would be allowed at certain points and denied at others. The growth of the city demanded a correction of these abuses, and, to save further trouble and disputes, the Tacoma Railway & Power Company and the city of Tacoma entered into a contract in which mutual promises and concessions were made. We shall quote the parts of the contract pertinent to the present inquiry, together with the preamble of the ordinance authorizing the commissioner of public works to enter into it:

'An ordinance authorizing and directing the commissioner of public works of the city of Tacoma to enter into a contract for and on behalf of said city with the Tacoma Railway and Power Company * * * for the settlement of certain differences and disputes heretofore existing between said city and said company. * * *

'Fifth. On and after the first day of April, 1903, the said party of the first part shall transport any person from any point or place within the corporate limits of the city of Tacoma, on any line or lines of street railway owned, operated or controlled by said party of the first part, to the terminus of its line in Point Defiance Park, for a single fare not exceeding five cents, and the party of the first part agrees that it will from and after the date of this agreement, extend its present transfer system for a continuous trip one way to and from all lines within the city of Tacoma (and including that portion of the Point Defiance line outside of the city of Tacoma), but nothing in this section shall be so construed as to require the issuance of transfers which can be so used on parallel or other lines as to make it possible for a passenger to make a round trip for one fare, nor to prevent the party of the first part from making and enforcing all reasonable rules and regulations necessary, in its judgment, to prevent fraud. * * *

'Seventh. And said party of the first part further stipulates, agrees and consents to and does hereby waive and relinquish each and every right, privilege and authority conferred and granted in and by any street railway franchise now held and owned by said party of the first part to the extent only that the same are inconsistent and in conflict with the terms, conditions and provisions of these articles of agreement.

'Eighth. That said city of Tacoma, the party of the second part, for and in consideration of the foregoing agreements made and to be executed by the party of the first part, does hereby agree that upon the proper execution, in duplicate, and delivery of this agreement, by each of said parties to the other, to give its consent, by ordinance, to the transfer and assignment of all the right, title and interest in and to each and every of these certain franchises granted by the city of Tacoma for street railway purposes, which the said party of the first part may now own, either as the original grantee or as assignee.'

So far as the record shows, no dispute has arisen between the city and the railway company, excepting in so far as the contract may be held to apply to the following condition: A part of one of the railway company's acquired lines runs beyond the city limits about a mile, terminating at the village of Fern Hill, a suburb of the city of Tacoma. From the point where this line crosses the city limits to Fern Hill, the road was operated under a franchise granted by the commissioners of Pierce county, and the company had been accustomed to charge an additional fare of five cents for a passenger going beyond the city limits, and also an additional fare of five cents for each passage initiated beyond the city limits. So that the fare to or from the village of Fern Hill was ten cents, instead of the customary five-cent fare charged on all other lines in the city. On July 9, 1909, the city passed an ordinance under which the limits of the city were extended so as to take in additional territory. The line of the railway from the city limits to Fern Hill was in the included area. It is the contention of the railway company that the line from the old city limits to Fern Hill being built and operated under a county franchise and being beyond the legislative jurisdiction or contractual power of the city at the time the contract was made, and, further, that the spirit and terms of the contract as well as its object were to cover only existing disputes, it still has a right to charge a 10-cent fare to and from Fern Hill. The city contends that the object of the contract was not only to cover existing differences, but to insure a five-cent fare within the city limits of Tacoma whenever and wherever the limits of the city might be extended; that the burden follows the benefits of the original franchise as well as the contract, and, the added territory being now a part of the city of Tacoma, the company is bound to carry all passengers within the present city limits for a flat five-cent fare. Thus disputing, the parties came to the superior court of Pierce county, where it was decided that the company could charge a five-cent fare and no more.

Certainty is the strength of the law, and it is proper to look to our own decisions as well as those of other states for guidance in our interpretation of the contract. But one case has been decided by this court involving a like principle. Seattle Lighting Company v. Seattle, 54 Wash. 9, 102 P. 767. In that case the franchise was a general trust to lay pipes 'throughout the city of Seattle and throughout any addition thereof,' and 'as the boundaries thereof are or may be extended.' It was held that the company could operate under its franchise in new territory beyond the old city limits, and that it was not confined by the terms quoted to unplatted area within the boundaries existing at the date of the franchise. The court followed the leading case upon this theory of the law--St. Louis Gaslight Company v. St. Louis, 46 Mo. 121--and other apt authority. The argument of the court was further sustained by the assertion of a rule deduced from the following authorities: Town of Toledo v. Edens, 59 Iowa, 352, 13 N.W. 313; Indiana Railway Co. v. Hoffman, 161 Ind. 593, 69 N.E. 399; McGurn v. Board of Education, 133 Ill. 122, 24 N.E. 529. The court said: 'It seems clear that, when new territory is brought into a city, general ordinances of the city immediately control the new as well as the old territory, and do not require express legislative action to give them such application. * * * An ordinance granting a franchise generally stands upon the same footing as any other ordinance of the city.'

The case of Indiana Railway Company v. Hoffman is quite in point. A contract similar in terms, and designed to cover substantially the same disputes, was entered into between the company and the city. It was agreed that the company would 'issue transfer tickets free of charge to all passengers requesting the same who boarded its cars at any point upon its line within the limits of the city of South Bend, and whose destination might be upon any point upon any other line of appellant within the said city limits. Such transfer tickets to be valid only upon the next car leaving upon the line...