Tacoma Ry. & Power Co. v. City of Tacoma

• Decision Date: 07 May 1914
• Docket Number: 11,610.
• Court: Washington Supreme Court
• Parties: TACOMA RY. & POWER CO. v. CITY OF TACOMA.

140 P. 565

79 Wash. 508

TACOMA RY. & POWER CO. v. CITY OF TACOMA.

No. 11,610.

Supreme Court of Washington

May 7, 1914

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Suit by the Tacoma Railway & Power Company against the City of Tacoma. Judgment for defendant, and plaintiff appeals. Affirmed.

Jas. B. Howe, of Seattle, and John A. Shackleford of Tacoma, for appellant.

T. L Stiles and Frank M. Carnahan, both of Tacoma, for respondent.

GOSE J.

This is a bill in equity to enjoin the city of Tacoma from forfeiting a franchise. The city filed an answer and a cross-complaint asking that the franchise be declared forfeited. Issues were joined, the cause was tried, and ultimated in a judgment in favor of the city, terminating the franchise. The plaintiff has appealed.

The respondent, the city of Tacoma, is a city of the first class, and, since 1893, has owned and operated a municipal lighting plant. In 1912 it qualified itself to take over the entire lighting business of the city. The appellant owns and operates a street railway system in the city of Tacoma. In 1890 the Legislature passed an act (Laws 1890, p. 131) classifying cities, and empowering cities of the first class to frame their own charter. It also empowered them (Rem. & Bal. Code, § 7507, subd. 7): 'To lay out, establish, open, * * * or otherwise improve streets, alleys, avenues, * * * and to regulate and control the use thereof, and to vacate the same, 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.'

In pursuance of this power, the respondent framed an independent charter, and amended the charter in 1896, prohibiting the legislative power of the city from granting to any person or corporation a franchise, privilege, or right 'to sell or supply water or electric lights within the city of Tacoma to the city or any of its inhabitants,' as long as the city owns a plant or plants for that purpose and is engaged in the public duty of supplying water or light, subject to the exception that the city might grant a franchise to supply water or electric light to any part of the city not supplied or furnished by the city plant, 'to cease and determine at such time as the city of Tacoma shall furnish and provide water and light in said section or part of the city.' This amendment was carried into the charter of 1909. In harmony with this charter, the city council in 1905 adopted an ordinance granting to the appellant, its successors and assigns, for a period of 25 years, 'the right, privilege, authority, and franchise' to erect and maintain poles, lines, and conduits, and to stretch wires thereon along, across, and underneath the streets and alleys of the city, for the purpose of transmitting, distributing, and selling electric current, to be furnished and used for the purpose of furnishing 'power and heat, or either of them,' for power and heating purposes, and 'for lighting street cars,' and providing that it should not 'furnish power to be used for lighting or generating electricity for lighting.' It was provided that the stipulations in the ordinance should not prevent the city from granting the appellant, 'by special permit,' the right to furnish electric current 'for lighting purposes,' subject to the provisions of the city charter and the laws of the state, 'such permit, however, to be revocable at any time at the option of the city.'

The ordinance further provided: 'Sec. 2. That each and every right, privilege and authority and franchise by this ordinance granted, shall without the passage of any resolution, ordinance or any action of any kind whatsoever, on the part of the city of Tacoma, be null and void and absolutely of no effect, upon the failure of said grantee, its successors or assigns, to perform any and all of the conditions in this ordinance specified and mentioned, for a period of thirty days after notice shall have been served upon said grantee, its successors and assigns, by the commissioner of public works of said city, under the directions and authority of the city council of said city to the effect that said city will, if said failure is not corrected before the expiration of thirty days from the serving of said notice, consider this franchise null and void and absolutely of no effect because of the failure of said grantee, its successors or assigns, to perform any and all of the conditions in this ordinance specified; and in the event of the forfeiture of the franchise hereby granted, on account of the breach of any of the conditions herein, the said grantee, its successors or assigns, shall also forfeit and surrender to the city of Tacoma, all poles, lines, wires, or other property that may be located or constructed in pursuance hereof, within the city of Tacoma, unless the same are removed within sixty days thereafter and said streets, alleys and public places from which they are removed put in good condition, and the same shall thereupon become and be the property of said city of Tacoma.'

Another section of the ordinance provided that the grant was subject to the right of the city at any time, on 30 days' notice to the grantee, to repeal, change, or modify the grant if the franchise granted was not exercised in accordance with the provisions of the ordinance; 'and the city council reserves the right so to do, and this section shall be considered as a cumulative and additional remedy to that provided by section 2 of this ordinance.'

Another section of the ordinance in express terms reserved to the city the right to maintain and operate an electric light, heat, and power plant.

The appellant filed an acceptance of the ordinance as follows: 'And the said Tacoma Railway & Power Company, by its manager and upon due authority of its board of directors, agrees to be bound by the conditions, limitations, and obligations set forth and contained in said ordinance.'

In December, 1908, the appellant entered into a contract with the Northern Pacific Railway Company, wherein it obligated itself to furnish to that company, at its depot in the city and at its shops in South Tacoma, all the electric power that it uses 'for power purposes and for lighting purposes, for a period of ten years from the date of said contract.' On the 2d day of April, 1913, the city, then being qualified to take over all the lighting business within its boundaries, passed a resolution revoking the permit, which it had theretofore granted to the appellant, to furnish electric current for lighting purposes, and providing that from and after April 15th following it should cease to furnish any current for that purpose. On April 21st following the council passed a resolution, reciting that the appellant was then supplying electric current to be used directly and indirectly for lighting purposes. The resolution directed the commissioner of public works to notify the appellant that, in case of failure to comply with the terms and conditions of the ordinance before the expiration of 30 days after service of the notice, the city would consider the franchise granted by the ordinance null and void, and would claim a forfeiture of all poles, wires, lines, and other property located or constructed in pursuance of the ordinance, unless the same should be removed within 60 days, as specified in section 2, and that the council would repeal the ordinance. The notice was served on April 23d. The appellant declined to comply with the notice, and, on the 22d day of May, commenced this action, praying that the appellant be enjoined from repealing the ordinance or declaring the same null and void, and praying that it be enjoined from asserting a forfeiture. The city answered, setting forth the matters and things to which we have adverted, and praying that the appellant be enjoined from furnishing electric power in the city, to be used directly or indirectly for lighting purposes; and that the ordinance to which reference has been made, 'and every right, privilege, authority, and franchise granted thereby,' be forfeited, and declared to be null and void. It was adjudged that all the powers granted by the ordinance had been forfeited by the appellant in continuing to furnish the Northern Pacific Railway Company with power for lighting; that the ordinance should be null and void and of no further effect; that the appellant should be no longer entitled to exercise any privileges under it 'except to remove its poles, lines, wires, and other property from the streets of said city'; that the appellant be enjoined from maintaining poles, lines, or stretching or maintaining wires thereon, in, over, upon, or across the streets or alleys of the city, and from transmitting electric current over said lines or wires for the purpose of furnishing 'power or heat, or for any other purpose' arising out of, or dependent upon, such ordinance. It was further adjudged that, unless the appellant shall, 'within sixty days after the entry of this decree, remove its poles, wires, and other property from the streets, alleys, and public places of the city, the same shall be thereupon forfeited to, and be the property of, the city of Tacoma.'

The appeal presents four principal questions: (1) Was the condition in the ordinance that the appellant should not furnish electricity for lighting purposes a valid one; that is, did the city have the power to so limit the franchies? (2) If so, was the limitation abrogated by the public service commission law (Laws 1911, p. 543)? (3) Did the refusal of the appellant to discontinue furnishing power to the Northern Pacific Railway Company for lighting purposes warrant the...