State v. Home Tel. & Tel. Co. of Spokane

• Citation: 172 P. 899,102 Wash. 196
• Decision Date: 07 May 1918
• Docket Number: 14567.
• Court: Washington Supreme Court
• Parties: STATE ex rel. ELLERTSEN v. HOME TELEPHONE & TELEGRAPH CO. OF SPOKANE.

172 P. 899

102 Wash. 196

STATE ex rel. ELLERTSEN v. HOME TELEPHONE & TELEGRAPH CO. OF SPOKANE.

No. 14567.

Supreme Court of Washington

May 7, 1918

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by the State, on the relation of Harving Ellertsen, against the Home Telephone & Telegraph Company of Spokane. Judgment for plaintiff, and defendant appeals. Affirmed.

Post, Russell, Carey & Higgins, of Spokane, for appellant.

J. M Geraghty and Alex. M. Winston, both of Spokane, for respondent.

WEBSTER J.

The appellant has been operating since 1905 a telephone system in the city of Spokane. The franchise granted it provided that the charge for telephones installed in private residences should not exceed $2.25, with a discount of 25 cents per month for cash payments made before the 10th day of the month in which the service is rendered. For the sake of brevity we will refer to this as the $2 rate. After the passage of the Public Service Commission Law in 1911, the appellant filed with the Public Service Commission a copy of its franchise showing the above rate. Subsequently the appellant consolidated with another telephone company which had theretofore been operating in Spokane, but which had lost its franchise, and on January 18, 1915, the appellant filed with the Public Service Commission a rate schedule to be effective on February 20, 1915, naming as its rate for a single party residence telephone the sum of $3 per month, instead of the $2 rate as provided in appellant's franchise. The relator brought this action seeking a writ of mandate directing the appellant to install in his residence a single party telephone service at the $2 rate. The peremptory writ was issued by the superior court, and this appeal followed. The question presented thereby is whether the superior court, by mandamus, has jurisdiction to compel the appellant to furnish service for a single party residence telephone at the $2 rate, that rate being lower than the rate set forth in the tariff filed by the appellant with the Public Service Commission.

The contention of the appellant is that the rate provision in the franchise never was a contract, and that the city in granting a franchise had no authority to fix a rate, and that even assuming that the franchise rate was valid and enforceable it was superseded by the enactment of the Public Service Commission Law, and the filing by the appellant of a tariff under the provisions of that act.

Section 9314, Rem. & Bal. Code, provides:

'Any telephone or telegraph corporation or company, or the lessees thereof, doing business in this state, shall have the right to construct and maintain all necessary lines of telegraph or telephone for public traffic along and upon any public road, street, or highway: * * * Provided, further that where the right of way, as herein contemplated, is within the corporate limits of any incorporated city, the consent of the city council thereof shall be first obtained before such telegraph or telephone lines can be erected thereon.'

In State ex rel. Telephone Co. v. Spokane, 24 Wash. 53, 63 P. 1116, this court held:

'The contention of counsel for appellant that the statute limits the authority of the city council to reasonable and proper regulations, and to prescribing the method in which telegraph and telephone companies shall construct and operate their lines, cannot be conceded. As has been seen, by another statute, the authority to regulate and of complete control of such lines has been given. The power to refuse is correlative with the power to consent, and such power is plainly authorized by the statute.'

In the case of Commercial Electric Light & Power Co. v. Tacoma, 17 Wash. 661, 50 P. 592, in which the court was considering an ordinance granting a franchise to an electric company to furnish power to business portions of Tacoma, this court, in referring to the franchise ordinance, said:

'The ordinance which was sought to be repealed was in the nature of a contract, and it was not in the power of one of the contracting parties to destroy the rights and property of the other by merely declaring the contract abrogated.'

The appellant, however, contends that there is no express delegation by the state to the city of the power to impose terms as to rates in the granting or consent to operate a telephone system. This express question was passed on adversely to this contention in State ex rel. Tacoma v. Sunset Tel. & Tel. Co., 86 Wash. 309, 150 P. 427, where Judge Holcomb, speaking for the court, said:

'We are not impressed with appellant's contentions (1) that the city had no power to attach conditions to the Webster franchise; and (2) that, even if it had the power to attach conditions, the conditions attached were void. The state had previously delegated to cities of the first class, of which relator is one, the general power 'to lay out, establish * * * streets, alleys * * * and to regulate and control the use thereof, * * * and to authorize or prohibit the use of electricity at, in, or upon any of said streets, or for other purposes, and to prescribe the terms and conditions upon which the same may be so used, and to regulate the use thereof.' Rem. & Bal. Code, § 7507, subd. 7. Though appellant insists that this statutory provision is not a grant of power in regard to telephone franchises, because 'it does not, in express terms, refer to telephone lines, or purport to confer the right to grant telephone franchises,' we do not agree therewith. The power is both generally and specifically conferred. Again, appellant urges that, even if the power were conferred by section 7507, supra, it was repealed by the subsequent enactment by the same Legislature of section 9314, Rem. & Bal. Code (Laws 1890, pp. 292-294; Rem. & Bal. Code, § 9300 et seq.), being the general telephone franchise act. These contentions were certainly decided adversely to appellant's views in State ex rel. Spokane & B. C. Tel. Co. v. Spokane, 24 Wash. 53, 63 P. 1116, and in Tacoma R. & Power Co. v. Tacoma, 79 Wash. 508, 140 P. 565. Notwithstanding appellant's argument to the contrary, in both the cases mentioned, it was distinctly held that the power to regulate and control the use of the streets was conferred by section 7507, subd. 7, supra, including the power to attach conditions. The question is not open to debate. All the conditions imposed were within the city's corporate powers and valid conditions attaching to the franchise. Indeed, if not then, Webster never obtained the city's assent to the use of the streets, and never had a franchise therefor.'

In the later case of State ex rel. Walker v. Superior Court, 87 Wash. 582, 152 P. 11, the Tacoma Case was cited with approval, and we said:

'In the proviso in section 9314, it is said that the highways within the corporate limits of a city cannot be used without the consent of the city council. By the subdivision of section 7507 quoted, the city, in its corporate capacity, is given the powers therein specified. By the decision of this court in the case last cited, it is held, as already noted, that by that statute (section 7507) the power is both generally and specifically conferred in regard to telephone franchises and right to impose conditions. The power of the city, therefore, with regard to telephone franchises and the right to impose conditions when such franchises are granted flows from a statute which gives that power to the city, as distinct from a statute conferring such power upon the legislative authority of the city. Herein lies the distinction between this case and the Benton, Ewing, and Dolan Cases [50 Wash. 156, 96 P. 1033; 55 Wash. 229, 104 P. 259; 72 Wash. 343, 130 P. 353]. Whether, under the proviso in section 9314, which requires the consent of the city council before highways within the city can be used, the city council had the right to impose conditions, we need not here inquire, because it has already been held that

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