Tacoma Gas & Elec. Light Co. v. City of Tacoma

• Decision Date: 18 March 1896
• Citation: 44 P. 655,14 Wash. 288
• Court: Washington Supreme Court
• Parties: TACOMA GAS & ELECTRIC LIGHT CO. v. CITY OF TACOMA.

44 P. 655

14 Wash. 288

TACOMA GAS & ELECTRIC LIGHT CO. v. CITY OF TACOMA.

Supreme Court of Washington

March 18, 1896

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by the Tacoma Gas & Electric Light Company against the city of Tacoma for an injunction. From a judgment for plaintiff defendant appeals. Affirmed.

James Wickersham and Stacy W. Gibbs, for appellant.

Stiles Stevens & Tillinghast, for respondent.

SCOTT J.

This action was brought by plaintiff to restrain the city of Tacoma from enforcing an ordinance regulating the charge for gas furnished its citizens. The complaint, in substance alleged the incorporation of plaintiff in the state of Washington, the corporate existence of the city under the laws of the territory of Washington, and its subsequent adoption of a freeholders' charter under the constitution; the grant by ordinance, in 1884, to John W Sprague, his associates and assigns, of the right and privilege to supply the city of Tacoma and its inhabitants with light by gas, electricity, or other means, and to lay pipes in the streets for this purpose; the acceptance of the franchise by Sprague, and building of said works, and laying of pipes, and furnishing of gas to the inhabitants of Tacoma, by the Tacoma Light & Water Company, the assignee of Sprague; the assignment of the franchise by the light and water company to plaintiff; that the rates now charged are reasonable; that, in violation of plaintiff's rights, the city enacted an ordinance on June 25, 1895, fixing maximum rates for gas at $1.50 per 1,000 cubic feet for lighting, and $1.25 for heating; that plaintiff is the only person or corporation engaged in supplying gas in the city of Tacoma; that the rates fixed by the ordinance are not reasonable, and that the ordinance is ultra vires and void; that many suits will be brought against its employés for a violation of the ordinance, to the great damage of plaintiff, and cause irreparable injury. Wherefore the plaintiff prayed for an injunction restraining the city from enforcing the ordinance against the plaintiff, its agents or servants, during the life of its franchise. Upon a hearing, after notice given, the court enjoined the enforcement of the ordinance pending the final disposition of the case, and the city has appealed therefrom.

A preliminary question is raised over the refusal of the court to permit the defendant to read certain affidavits upon the hearing. We do not regard this as material, it appearing that the application was made and the injunction granted solely upon the ground that, under the facts stated in the complaint, the city had no power to enact or enforce an ordinance against the plaintiff fixing rates.

The question of the unreasonableness of the rates being waived for the purposes of that hearing, we shall confine our attention to the question of power. It is contended by respondent that, under the franchise, the city surrendered whatever rights it may have had to fix the rates to Sprague and his assignees, and only imposed the condition that the rates should be reasonable. The section of the ordinance in question is as follows (section 1): "That John W Sprague, his associates and assigns, are hereby granted the right and privilege to construct and maintain, within the corporate limits of the city of Tacoma, works as may be necessary or convenient for the manufacture, production, generation, and supply to the said city and its inhabitants of light by gas, electricity, or other means, for which he or they are hereby authorized and empowered to charge the consumer reasonable rates." The respondent's contentions are based upon two grounds. One is that the grant was in the nature of a contract, and, the company having fixed the rate at two dollars, the city could not decide that it was unreasonable, and fix a lower rate. It is conceded that the state, by a general law, could regulate such charges, unless the license took the form of a contract waiving the right. It is also conceded that the state could, by express enactment, delegate such power to municipalities. It is not contended that the state has fixed the rate, and the respondent contends that it has not delegated the power to do so; and it is to this question that we shall direct our attention. It is a well-settled rule of construction that a delegation of powers will not be presumed in favor of a municipal corporation unless they be such as are necessary to its corporate existence, but that the same must be clearly conferred by express statutory enactment. Minturn v. Larue, 23 How. 435; Pennsylvania R. Co. v. Canal Com'rs, 21 Pa. St. 9-22; Dill. Mun. Corp. (4th Ed.) § 91; Louisville, N. A. & C. Ry. v. State, 135 Ind. 59, 34 N.E. 704; City of St. Louis v. Bell Tel. Co., 96 Mo....