Portland Ry., Light & Power Co. v. City of Portland

• Decision Date: 25 November 1912
• Docket Number: 5,722.
• Parties: PORTLAND RY., LIGHT & POWER CO. v. CITY OF PORTLAND et al.
• Court: U.S. District Court — District of Oregon

201 F. 119

PORTLAND RY., LIGHT & POWER CO. v. CITY OF PORTLAND et al.

No. 5,722.

United States District Court, D. Oregon.

November 25, 1912

F. V Holman and Franklin T. Griffith, both of Portland, Or., for complainant.

Frank S. Grant, City Atty., and L. E. Latourette, Deputy City Atty., both of Portland, Or., for defendants.

Before WOLVERTON and BEAN, District Judges.

BEAN District Judge.

This suit is brought to enjoin the defendant city and its officers and agents from enforcing as against the complainant ordinance No. 25683, enacted by its city council August 14 1912, and which reads as follows:

'An ordinance providing for a reduced fare on street cars where no seats are provided for passengers, and providing for a penalty for the violation thereof.

'The city of Portland does ordain as follows:

'Section 1. That there shall be placed above the entrance of every street car or car operated as a street car within the city of Portland, in large letters, words and figures indicating the seating capacity of the car.

'Sec. 2. The conductor or other person in charge of the car shall ring up in plain sight of the occupants of the car the number of fares received. When the number of fares received equals the seating capacity of the car of two feet for each passenger as indicated on its entrance, then the conductor or person who collects the fares shall only be allowed to charge or receive three cents for each passenger admitted, for a full fare ride, and it shall be unlawful for any street car company to accept or receive any greater sum than three cents for any person admitted to the car in excess of its seating capacity.

'Sec. 3. Any street car may be permitted to receive and it is required to receive passengers to the extent of the standing room of the car. If the number of passengers in the car falls below its seating capacity, any person standing and who may have paid a three-cent fare may take a seat vacated by other passengers without an extra charge.

'Sec. 4. Persons paying only a three-cent fare as above set forth are entitled to all the transfers and other privileges of a regular fare as herein limited.

'Sec. 5. Any person or company operating street cars in the city of Portland is hereby required to issue and keep on sale tickets in pads of 100 or more, printed in such a way that two and a half cents shall be sufficient for a standing room fare. The selling price of such pads of 100 two and a half cent fares shall not exceed $2.50. Such pads shall be so printed that two of such standing room tickets may be received for a full fare with seat. Said company or persons operating street cars in the city shall immediately upon the taking effect of this ordinance, issue and keep on sale such tickets.

'Sec. 6. Any person, firm or corporation violating any of the provisions of this ordinance, shall upon conviction in the municipal court be punished by a fine of not more than $500.00 or imprisonment of not more than six months. It shall also be lawful in case the provisions of this ordinance are willfully violated for a period of one month after the passage of this ordinance for the council of said city of Portland to declare the franchise of the company violating the ordinance forfeited, and to remove its tracks from the streets. Said forfeiture herein provided for may be imposed in lieu of the fine and imprisonment herein provided for, at the option of the council.'

In December, 1902, the Oregon Water Power Company owned and was operating street railways in the city of Portland, under municipal franchises, and at that time the city passed and the Power Company accepted a new ordinance granting to it a franchise over additional streets, which provided that the grantee and its successors and assigns 'may charge and collect from each passenger traveling upon its railways a fare of five cents, and no more, for traveling each continuous trip in any one direction within the limits of the city of Portland over the line of railway constructed by authority of this ordinance, and its other lines of railway within the limits of said city.'

On November 24, 1902, the Portland Railway Company was the owner of certain franchises under which it was operating street railways in the city of Portland, and on the day named the city passed, and the company accepted, an ordinance repealing all former franchises and granting a new one over certain designated streets, and which provided that the grantee or its successors and assigns 'may charge and collect from each passenger traveling upon its railways for each trip traveled by such passenger in one general direction upon the railways authorized by section 1 of this ordinance within the limits of the city of Portland a fare of five cents and no more; excepting that for riding in or the use of observation cars, funeral cars, mail cars, express cars, freight cars, party cars, and other special cars said railway company, its successors and assigns, may charge and collect such compensation, rates and fares as it or they may desire.'

On January 9, 1903, the City & Suburban Railway Company was the owner of a street railway system and was operating the same under previously granted franchises covering certain designated streets, and on that day an ordinance was adopted repealing former franchises and granting to the company a new one which contained a provision in reference to fares similar to that in the ordinance of November 24, 1902, to the Portland Railway Company.

At the time of the passage of these several ordinances, the city had authority to 'provide for and allow the laying down of tracks for street cars and other railways upon such street or streets as the council may designate' (Laws 1898, Special Session, p. 114), but no authority to enter into a contract with the grantee of such franchise fixing the rate of fares to be charged by such grantee, nor did it have specific authority to regulate such charges.

On the 23d of January, 1903, the present charter of the city of Portland was approved by the Governor. It contains a provision that:

'Nothing in this charter contained shall affect the validity of any franchise, right or privilege in actual use or enjoyment heretofore given or granted by any former or the present city of Portland, or by the city of East Portland or by the city of Albina, and the same shall be and continue in force and effect as given or granted by said cities or either of them. ' Special Laws 1903, p. 52.

After the adoption of the present charter and prior to 1909, the complainant herein became the owner by purchase or otherwise of the several franchises heretofore referred to and the railways being operated thereunder. In order that it might operate its lines as one system, the city council passed, and the complainant accepted, in April of that year, a new ordinance (No. 19176) granting to it additional franchises over streets and parts of streets so as to enable it to connect its tracks, which ordinance provides (section 12):

'The railway company, its successors and assigns, may charge and collect from each passenger traveling upon its railways or street railways for each trip traveled by such passenger in one general direction, wholly within the city of Portland, on the railways or street railways of the railway company, its successors and assigns, including railways and street railways constructed on the streets or parts thereof, authorized by section 1 of this ordinance, a fare or five cents (5¢) and no more, except that for passengers traveling in observation cars the railway company may charge and collect from each passenger a fare not exceeding fifty cents (50¢) per trip. The railway company, its successors and assigns, may charge and collect for the use of funeral cars, mail cars, express cars, freight cars, party cars and other special cars, a sum not exceeding ten dollars ($10.00) per hour for each of such cars.'

And that:

'This ordinance and the franchise herein contained is granted subject to all the terms, provisions and conditions contained in the charter of the city of Portland and applicable thereto in the same manner and to the same extent as if each and every of said terms, provisions and conditions were expressly set out and incorporated herein. ' Section 19.

And also:

'The power and right at all times to reasonably regulate in the public interest the exercise of the rights and privileges granted by this franchise shall be and remain vested in the council of the city of Portland. ' Section 21.

At the time of the granting of such franchise, the following provisions of the city charter were in force:

'Sec. 94. The council may, subject to the limitations and conditions contained in this charter, grant for a limited time specific franchises or rights in or to any of the public property or places mentioned in the preceding sections (streets, alleys, highways, etc.). Every such grant shall specifically set forth and define the nature, extent and duration of the franchise or right thereby granted, and no franchise or right shall pass by implication. At all times the power and right reasonably to regulate in the public interest the exercise of the franchise or right so granted shall remain and be vested in the council, and said power and right cannot be divested or granted.'

'Sec. 105. The council of the city of Portland shall have at all times power to regulate by ordinance, street railroads, tramways and other railroads and the use of tracks and cars, etc.'

'Sec 112. Every grant of a franchise which provides for the charging of rates, fares and charges shall contain a provision fixing the maximum rate of fares, rates and charges which the grantee, his, its or their successors or assigns can charge...