State v. Superior Court of King County

Citation67 Wash. 37,120 P. 861
CourtUnited States State Supreme Court of Washington
Decision Date27 January 1912

Prohibition by the State, on the relation of Edward E. Webster, against the Superior Court of King County and others. Writ issued.

117 creating a Public Service Commission with power to regulate public service corporations, confers jurisdiction on the commission to raise rates for telephone service in a city above the rates fixed by ordinance granting the franchise to operate a telephone system, where such increased rates are necessary to give the telephone company a fair return on its capital, and enable it to maintain the system in a proper condition so as to render efficient service.

The public utilities act of 1911 (Laws 1911, c. 117), providing for the regulation of public service corporations, and for the appointment of a Public Service Commission with defined powers, is not invalid as a usurpation of legislative functions for the power to be exercised by the commission consists simply in the ascertainment of facts on which the general rule of the Legislature and of the Constitution prescribing that reasonable rates shall be adopted operates.

Geo. D Emery and Preston & Thorgrimson, for plaintiff.

W. V Tanner, Stephen V. Carey, James E. Bradford, and H. D. Hughes, for respondents.


The Independent Telephone Company was organized in 1901 under the laws of the state of Washington. Under its general powers and by the warrant of a franchise, it is operating a telephone system in the city of Seattle which has grown in volume from 3,774 service telephones in 1903 to 18,071 in 1910. In June 1910, a patron of the company made complaint to the then State Railroad Commission, alleging inefficient service on the part of the company, the charge of inefficiency being predicated upon an allegation that relator's rates were insufficient to support a proper service. A hearing was had, and, after a physical valuation of the company's property, on order was made directing the company to inaugurate a new schedule of rates which were somewhat higher than those fixed in the franchise theretofore granted by the city of Seattle. The order of the commission became effective November 1, 1911, and was upon that day and the day thereafter put in force by the company. On the evening of the second day the company was enjoined at the instance of the city of Seattle from collecting the rates fixed by the commission which, because of the act of 1911, will be hereafter referred to as the 'Public Service Commission.' Thereupon relator came to this court, and asked that a writ be made to run against the superior court, prohibiting it from further proceeding in defiance of the order of the Public Service Commission. The Attorney General has filed a brief in this court, and has made oral argument in support of the contention of the relator that the state, through its Public Service Commission, had ample and lawful power to raise the service rates of the company above the rates fixed in the ordinance granting its franchise.

A part of the relator's brief is taken up with a discussion of the question of the jurisdiction of this court. Inasmuch as relator is now in a position of extreme uncertainty, being subject to the penalties of the superior court for disobedience of its orders on the one hand and to a severe penalty for disobedience of the order of the commission, if lawfully made, we think this question may be disposed of by saying, without discussion, that a remedy by appeal would be inadequate. We have therefore merely suggested enough to indicate that we are of opinion that we have jurisdiction under the law. Otherwise the stipulation of the parties would be ineffectual to give it to us. The city admits that the franchise rates are inadequate, and in the interests of a speedy decision upon the main issues it is stipulated that the sole questions to be determined by us are: (1) 'Has the Legislature vested in the Public Service Commission authority to increase the rates specified in section 7 of Ordinance 6,498 of the city of Seattle and ordinances amendatory thereof, under which the company is operating?' (2) 'If such power has been vested in the Public Service Commission, whether the legislative acts assuming to grant such powers are unconstitutional and void.'

On the first proposition there can be no doubt. The police power of the state is more than an attribute of sovereignty. It, like the power of taxation, is an essential element of government, and exists in every state without express declaration and without limitation, in so far as it is made to apply to the health, peace, comfort, and morals of the people. Formerly applied strictly and directly, it has now, because of changed economic conditions, come to be more favored, and is frequently relied upon to sustain laws which but indirectly affect the common good. The most modern and perhaps the most striking application of this power is to be found in our own books ( State ex rel. Smith v. Clausen, 117 P. 1101), where this court said: '* * * The test of a police regulation when measured by this clause of the Constitution [section 3, art. 1] is reasonableness, as contradistinguished from arbitrary or capricious action. * * * There is no absolute right to do as one wills, pursue any calling one desires, or contract as one chooses. * * * Liberty means absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.' It is unnecessary to dwell upon that case or the authorities upon which it is made to rest. 'In its broadest acceptation it means the general power of the state to preserve and promote the public welfare, even at the expense of private rights.' Tacoma v. Boutelle, 61 Wash. 434, 112 P. 661.

The power to regulate and control the rates of common carriers has been held to be a legitimate exercise of the police power of the state. Home Telephone Co. v. Los Angeles, 211 U.S. 271, 29 S.Ct. 50, 53, L.Ed. 176; Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77; Chicago, etc., R. R. v. Iowa, 94 U.S. 155, 24 L.Ed. 94. The authority of the Public Service Commission was by the Legislature of 1911 extended so as to include within its reach all public service corporations. Laws 1911, p. 538, et seq. It is a settled principle of constitutional law that 'the government which has a right to do an act, and has imposed upon it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of affecting the object is excepted, take upon themselves the burden of establishing that exception.' McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579; Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047.

Under article 12 of our state Constitution, there can be no doubt of the power of the state to take cognizance of all matters affecting common carriers. Telegraph and telephone companies are made common carriers and subject to legislative control.

The surrender of this control to a properly constituter commission, subject to judicial review, has been sustained as a lawful exercise of the legislative authority. State ex rel. O. R. & N. Co. v. Railroad Commission, 52 Wash. 17, 100 P. 179. In State ex rel. Great Northern Ry. Co. v. Railroad Commission, 52 Wash. 33, 100 [67 Wash. 42] P. 184, the right to fix rates for common carriers was sustained.

The only question remaining is the all-important one of whether the rates fixed by the ordinance granting the franchise may be altered or annulled by the state under its reserved powers; or, to be more exact, its police power. Much has been said in argument as to the power of the city, whether it had any power to fix rates in the absence of controlling legislation, or whether, granting its power, it holds it by express grant, or whether it is implied. Under the great weight of judicial authority, it seems to be certain that a municipality exercising the delegated power of the state has no right to fix rates unless the power be express. 'It has been settled by this court that the state may authorize one of its municipal corporations to establish by an inviolable contract the rates to be charged by a public service corporation (or natural person) for a definite term not grossly unreasonable in point of time, and that the effect of such a contract is to suspend during the life of the contract, the governmental power of fixing and regulating the rates. Detroit v. Detroit Citizens' St. Ry. Co., 184 U.S. 368, 382 [22 S.Ct. 410, 46 L.Ed. 592]; Vicksburg v. Vicksburg Waterworks Co., 206 U.S. 496, 508 [27 S.Ct. 762, 51 L.Ed. 1155]. But for the very reason that such a contract has the effect of extinguishing pro tanto an undoubted power of government, both its existence and the authority to make it must clearly and unmistakably appear, and all doubts must be resolved in favor of the continuance of the power. Providence Bank v. Billings, 4 Pet. 514, 561 ; Railroad Commission Cases, 116 U.S. 307, 325 [6 S.Ct. 334, 388, 1191, 29 L.Ed. 636]; Vicksburg, etc., Railroad Co. v. Dennis, 116 U.S. 665 [6 S.Ct. 625, 29 L.Ed. 770]; Freeport Water Co. v. Freeport City, 180 U.S. 587, 599, 611 [21 S.Ct. 493, 45 L.Ed. 679]; Stanislaus County v. San Joaquin C. & I. Co., 192 U.S. 201, 211 [24 S.Ct. 241, 48 L.Ed. 406]; Metropolitan Street Ry. Co. v. New York, 199 U.S. 1 [25 S.Ct. 705, 50 L.Ed. 65].' Home Telephone Company v. Los Angeles, supra; St. Louis v. Western Union Tel. Co., 149 U.S. 465, 13 S.Ct. 990, 37 L.Ed. 810; Manitowoc v. Manitowoc & N. T. Co., 145 Wis. 17, 129 N.W. 925, 140 Am. St. Rep. 1056; Jones, Tel. &...

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