Tacoma Ry. & Power Co. v. Pacific Traction Co.

• Decision Date: 30 July 1907
• Docket Number: 1,160.
• Citation: 155 F. 259
• Court: U.S. District Court — Western District of Washington
• Parties: TACOMA RY. & POWER CO. v. PACIFIC TRACTION CO. et al.

155 F. 259

TACOMA RY. & POWER CO. v. PACIFIC TRACTION CO. et al.

No. 1,160.

United States Circuit Court, W.D. Washington.

July 30, 1907

On Rehearing, August 10, 1907.

B. S Grosscup, A. G. Avery, and C. O. Bates, for complainant.

Ellis &amp Fletcher, for defendants.

HANFORD District Judge.

The Tacoma Railway & Power Company, complainant, commenced this suit against the Pacific Traction Company, which is a rival street railway corporation, and its manager, B. J. Weeks, and the Independent Asphalt Paving Company, a contracting corporation, which at the time of commencing the suit was engaged in paving Commerce street, in the city of Tacoma, and two other defendants, designated in the bill of complaint by the fictitious names of John Doe and Richard Roe. Pursuant to a stipulation of the parties the case has been dismissed as to the Independent Asphalt Company, and the court has not acquired jurisdiction of the mythical John Doe and Richard Roe. Therefore the case as presented on the final hearing is merely a controversy between two rival street railway companies for the right to occupy with railway tracks the center of a public street.

The complainant's claim to a prior and superior right is based upon an ordinance of the city of Tacoma granting a franchise to a corporation named 'Point Defiance Railway Company' for the construction and operation of a street railway system in certain streets of the city of Tacoma including the street in question, which franchise it claims to own as successor of the grantee, and a permit from the commissioner of public works of the city of Tacoma. The evidence proves that the franchise was granted in 1890. Section 1 of the ordinance comprehended lines of street railway which were at the date of the ordinance already constructed and in use. Section 2 of the ordinance contemplated lines of railway in certain streets between designated points, including that part of Commerce street, north of Ninth street, which is the subject of this controversy. No part of said contemplated lines have been constructed, and the first attempt to construct any part of the same was on the day preceding the date of the commencement of this suit, to wit, June 7, 1907, and the permit from the commissioner of public works did not issue until said date, and subsequent to the time at which the complainant had commenced work. Section 214 of the Tacoma city charter of 1890, which became effective after the grant of the franchise to the Point Defiance Railway Company, provides as follows:

'All franchises or privileges heretofore granted by this city which are not in actual use or enjoyment, or which the grantees thereof have not in good faith commenced to exercise at the time of the adoption of this Charter, are hereby declared forfeited and of no validity, and it shall be the duty of the city council to carry out the provisions of this section by the enactment of ordinances repealing said franchises.'

The brief filed in behalf of the complainant contains a statement to the effect that the complainant, after commencing to place its tracks across Ninth street, and extending northward into Commerce street, 'continued to work as best it could until the afternoon or evening of said day, when it was enjoined from further proceeding by an injunction issued from the superior court of the state of Washington for Pierce county, at the instance of the city of Tacoma. ' It is the opinion of the court that the complainant...