State of Washington v. Pacific Telephone & Telegraph Co.

• Decision Date: 20 October 1924
• Docket Number: No. 413.,413.
• Citation: 1 F.2d 327
• Court: U.S. District Court — Western District of Washington
• Parties: STATE OF WASHINGTON ex rel. CITY OF SEATTLE v. PACIFIC TELEPHONE & TELEGRAPH CO. et al.

1 F.2d 327 (1924)

STATE OF WASHINGTON ex rel. CITY OF SEATTLE v. PACIFIC TELEPHONE & TELEGRAPH CO. et al.

No. 413.

District Court, W. D. Washington, N. D.

September 5, 1924.

On Motion for Rehearing on Motion to Remand, October 20, 1924.

COPYRIGHT MATERIAL OMITTED

Thomas J. L. Kennedy, Corp. Counsel, and Walter B. Beals and George A. Meagher, Asst. Corp. Counsel, all of Seattle, Wash., for plaintiff.

Chadwick, McMicken, Ramsey & Rupp, of Seattle, Wash., Post, Russell & Higgins, of Spokane, Wash., Pillsbury, Madison & Sutro, of San Francisco, Cal., for defendants.

NETERER, District Judge (after stating the facts as above).

Mandamus is a high prerogative writ. 3 Bla. Com. 110; Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. It is an extraordinary remedy, where the usual and ordinary modes of procedure are powerless, and where without its aid there would be a failure of justice. Virginia T. & C. S. & I. Co. v. Wilder, 88 Va. 942, 14 S. E. 806. It has been termed a "criminal process relative to civil rights." Lord Mansfield, in Rex v. Barker, 3 Burr. 1265, said: "It was introduced to prevent disorder from failure of justice and defect of police," and "if there be a right and no other specific remedy this should not be denied." It is the absence of a specific legal remedy which gives the court jurisdiction. Com. v. Common Council, 34 Pa. 496. But the party must have a perfect legal right. Williams v. Cooper, 27 Mo. 225. It is an action at law between the parties. Kentucky v. Dennison, 65 U. S. (24 How.) 66, 16 L. Ed. 717. It cannot be granted in equity. Smith v. Bourbon, 127 U. S. 105, 8 Sup. Ct. 1043, 32 L. Ed. 73; People v. Olds, 3 Cal. 167, 58 Am. Dec. 398. There must be a positive ministerial duty, and no appropriate remedy to enforce it. State v. Knight, 31 S. C. 81, 9 S. E. 692; Shine v. Railroad Co., 85 Ky. 177, 3 S. W. 18; State v. Kinkaid, 23 Neb. 641, 32 N. W. 612. It is a proper remedy to enforce a specific ministerial act. Roberts v. U. S., 176 U. S. 230, 20 Sup. Ct. 376, 44 L. Ed. 443. It will always be denied when there is other adequate remedy. State v. Hamil, 97 Ala. 107, 11 South. 892; County of San Joaquin, etc., v. Superior Court, 98 Cal. 602, 33 Pac. 482. The writ is not a matter of right, but is to be awarded in the discretion of the court (People v. Croton, etc., 49 Barb. N. Y. 259; Wiedwald v. Dodson, 95 Cal. 450, 30 Pac. 580), unless a clear legal right is shown, or a statutory duty which is clear and undisputable, and there is no other legal remedy (Ill. Central Ry. Co. v. People, 143 Ill. 434, 33 N. E. 173, Bayard v. U. S., 127 U. S. 248, 8 Sup. Ct. 1223, 32 L. Ed. 116). It is a remedy to compel performance of a duty fixed by law; no other adequate remedy being afforded, the duty being clear and undisputable. State ex rel. Krutz v. Wash. Irr. Co., 41 Wash. 283, 83 Pac. 308, 111 Am. St. Rep. 1012.

The form of the action is not controlling. The court must look beyond to the purpose of the action (State of Ind. v. Allegheny Oil Co. C. C. 85 Fed. 870; State of Iowa v. C., B. & Q. R. Co. C. C. 37 Fed. 497 Justice Brewer; Illinois v. Ill. Central Ry. Co. C. C. 33 Fed. 721 Justice Harlan); and police provision or license in an ordinance may also contain contract provisions, the essential right or power of either not being changed (Pittsburgh, C. & S. L. Ry. Co. v. Hood, 94 Fed. 618, at page 624, 36 C. C. A. 423 Justices Taft, and Lurton and Judge Clark). This court, in Schoenfeld v. City of Seattle, 265 Fed. 726 at page 732, said: "The control of the streets in the city is exclusive; its power is plenary"

This power is a grant from the state. The state has the power to give and it has the power to take away. The city has the power to permit the streets to be occupied at sufferance or by license. If at sufferance it may under its general police power regulate the occupancy in the interest of the common welfare and for the general public good, or it may limit the manner of use within its general power as a condition to its occupancy for the common welfare, and may combine with the exercise of this power the condition that public service be furnished at a specified and agreed rate, and upon acceptance such condition becomes a contract enforcible by either party subject only to control by the state. At the time of the enactment of the ordinance in issue the city had the right to fix the charges to be made by the grantees of the telephone franchise for the service to be rendered to the city and its residents. This could be lost only by the intervention of the state (State ex rel. Ellertsen v. Home T. & T. Co., 102 Wash. 196, 172 Pac. 899), and when the Public Service Commission of Washington in December, 1911, assumed control and fixed rates or tariffs for telephone service in the city, the right to fix and regulate rates rested in the Department of Public Works, successor to the Public Service Commission. The franchise obligation between the city and the defendant company was a contract until the bond was cut by the state. State ex rel. Ellertsen, supra.

Looking at the petition and affidavit of the plaintiff, we find a franchise granted which limited the charges for use of phones, and which franchise was afterwards acquired by the defendant, its telephone system constructed and maintained thereunder, "other telephone lines, facilities, and equipment" acquired by the defendant, and so "commingled, consolidated, and confused with the franchise property as to be incapable of being disassociated or disassembled therefrom." We therefore have franchise and nonfranchise property, and the franchise transferred in trust, it is alleged, to another, without any of the franchise appliances or telephone system for the purpose of avoiding the contract obligation, and the increase of rates over the contract ordinance rate by the Public Service Commission of Washington (Department of Public Works), and the establishment of the "Burleson tariff" war rate without right, and the maintenance of the unlawful rate by the defendant for approximately five years, and the threat to further increase rates on the 1st of August ensuing, and the prayer in substance that the contract relation to the ordinance be re-established and extended over the entire system of the defendant, including the "commingled" and "consolidated" property, and that a rate be established by the court, using as a basis the rate fixed by the ordinance increased by the Public Service Commission, and not a higher rate than that established by the "Burleson tariff" war rate — establish a reasonable rate.

There is no positive, perfect, legal right, definite and determined; no clear and undisputable duty fixed by law or order. The relation of duty is inchoate and requires the application of judicial findings and decree to establish. There is no legislative act touching a public duty. State ex rel. Seattle v. P. S. T. L. & P. Co. (D. C.) 243 Fed. 748. That the relation created by the ordinance and orders and that the issue of this action is contractual is confirmed by the prayer in the petition, which is a guide for the relief sought (Cum. Tel. & Tel. Co. v. Hickson, 129 Ky. 220, 111 S. W. 316), and the conduct of the plaintiff.

The court judicially knows that the plaintiff city, through its legal department, in the litigation now pending in this court (Pacific T. & T. Co. v. Dept. of Public Works, 2 F.2d ___; Id., 265 U. S. 196, 44 Sup. Ct. 553, 68 L. Ed. 975), appeared before the court composed of three judges (section 266, Judicial Code Comp. St. § 1243), and asserted by affidavit and argument the contractual relation between the defendant and the city, and urged duty of defendant here, plaintiff there, to specific performance of such obligation. At bar it is stated that the city did not appear; that the city's legal department appeared on behalf of the Attorney General of the state. Separate briefs were filed by the state and by the city of Seattle, city of Spokane, and city of Tacoma through their several legal departments, urging the contractual relation of each to the defendant here by reason of their respective ordinances, and praying specific performance as against the relief sought by the plaintiff there, defendant here. Extended argument was made by the legal departments of the state and the several cities. It is immaterial that the city appeared through the state on the relation of the Department of Public Works. This action is prosecuted by the state on the relation of the city. Ordinance No. 45054 of the plaintiff city authorized, empowered, and directed the city's legal department to appear in the litigation then pending in this court. The issue here pending — rates — is properly an issue in that action, in which a temporary injunction has been issued.

Consideration of the ordinance in issue and the orders of the Public Service Commission and Department of Public Works was given by the three-judge court, composed of two Circuit Judges and one District Judge. The writer, as a member of that court, did not agree with the conclusion of the majority, believing that the court should be convinced beyond a reasonable doubt of the necessity (Paul Steam System Co. v. Paul C. C. 129 Fed. 757), and in the exercise of sound discretion manifestly just in view of all existing circumstances disclosed by the record (Society of Sisters of the Holy Name, etc., v. Pierce D. C. 296 Fed. 928), a question of doubt was created (Brooklyn Baseball Club v. McGuire C. C. 116 Fed. 782; Anargyros & Co. v. Anargyros, 93 C. C. A. 241, 167 Fed. 753), and that the function of a preliminary injunction primarily is to preserve the status quo (Nat. Commodities Co. v. Viret C. C. A. 296 Fed. 664), and the rate having been in force for several years, and a speedy trial could be had, and a doubtful issue in relation to depreciation, surplus fund, and the 4½ per cent. contract with the parent company, and the issue of law on schedule of rates fixed by ordinance, and a...