Wood v. City of Seattle

• Decision Date: 20 August 1900
• Citation: 62 P. 135,23 Wash. 1
• Parties: WOOD et al. .v CITY OF SEATTLE et al.
• Court: Washington Supreme Court

62 P. 135

23 Wash. 1

WOOD et al. .v CITY OF SEATTLE et al.

Supreme Court of Washington

August 20, 1900

Appeal from superior court, King county; William Hickman Moore Judge.

Bill for injunction by W. D. Wood and others against the city of Seattle and others. From an order enjoining certain defendants from assigning their rights under a proposed franchise of the city, or from acting under such franchise the latter appeal. Reversed.

Piles Donworth & Howe and Preston, Carr & Gilman, for appellants.

Ballinger, Ronald & Battle and Allen & Allen, for respondents.

FULLERTON J.

Article 4 of the charter of the city of Seattle contains, among others, the following provisions:

'Sec. 1. All legislative power of the city of Seattle shall be vested in a mayor and a city council.'

'Sec. 10. Every legislative act of said city shall be by ordinance. Every ordinance shall be clearly entitled and shall contain but one object, which shall be clearly expressed in its title. * * *'

'Sec. 13. * * * No bill for the grant of any franchise shall be finally passed within thirty days after its introduction, nor until it has been published in the official newspaper of the city at the expense of the applicant for ten days daily.'

'Sec. 18. The city council shall have power by ordinance and not otherwise: * * * Ninth. To authorize or prohibit the locating and constructing of any railroad or street railroad in any street, alley or public place of the city, and to prescribe the terms and conditions upon which any such railroad or street railroad shall be located, operated or constructed; to provide for the alteration, change of grade or removal thereof; to regulate the moving and operation of railroad and street railroad trains, cars and locomotives within the corporate limits of the city; and to provide for, and it shall be the duty of the council by ordinance to provide for, the protection of all persons and property against injury in the use of any such railroad or street railroad, or car thereof.'

'Sec. 20. Every grant of a franchise, right or privilege, shall be subject to the right of the city council at any time thereafter to repeal, change or modify the said grant, if the franchise granted thereby is not operated in accordance with the provisions thereof or at all, and every ordinance making such grant shall contain a reservation of the right of the city council to so repeal, amend or modify said ordinance. When any right, privilege or franchise has been granted, and has been accepted, the city council shall not extend the time for which such right, privilege or franchise is granted until within three years of the expiration of the time for which such right, privilege or franchise is granted.'

'Sec. 22. No exclusive franchies or privilege shall be granted for the use of any street, alley or highway or other public place or any part thereof.

'Sec. 23. The city council shall not grant authority to construct a street railway or lay down street railroad tracks upon or over any of the streets of said city, except in manner and on the terms following, that is to say: Upon the application being made to the city council for authority to construct and operate a street railway along and upon any of said streets, the city council shall, by resolution, determine whether such franchise, or any part thereof, shall be granted, and after such determination shall cause notice of such application and resolution to be published for ten days in the city official newspaper, at the expense of the applicant, and shall in such notice specify the route over and along which it proposes to grant such franchise, and shall offer to grant the same to the person, company or corporation who will pay for the franchise the highest percentage annually of gross receipts, but not less than two per cent. per annum. Ridding for such franchise must be in accordance with the provisions of this charter in relation to bids made to the board of public works, so far as such provisions may be applicable, and the city council may reject any and all bids, and may refuse to grant a franchise for any part of the route for which the application was made. Each bid must be accompanied by a certified check, payable to the order of the city comptroller, for the sum of one thousand dollars, and the amount of the check shall be forfeited and paid to the city in case the successful bidder shall fail to accept the franchise, and upon acceptance the sum so paid shall be credited to the grantee on account of percentages. The same method of procedure shall obtain in case of the extension of such franchise or any existing franchises. It shall be the duty of the city council to incorporate in every such franchise or amended franchise efficient provisions for the compulsory arbitration of all disputes arising between the grantee therein and his or its successors or assigns, and his, its or their employés as to any matter of employment or wages, unless upon submission to the electors of the city, a majority of the electors voting upon the question submitted shall assent to the granting of such franchise without such provision.'

It appears from the record that on April 24, 1899, the appellants made application to the city council for authority to construct and operate a street railway along and upon certain designated streets, alleys, and public places of the city of Seattle; that on May 1, 1899, a bill for an ordinance granting a franchise in accordance with the application, known as 'Council Bill No. 595,' was introduced in the city council, which remained pending before that body until January 18, 1900, during which time it was subjected to amendments as to its terms and conditions until a majority of the members of the city council were satisfied therewith. On the date last named the city council by resolution determined to grant the franchise. This resolution recited that application had been made for the granting of the franchise by the appellants; that a proposed ordinance granting a franchise had been introduced, and was ready for final passage, in favor of the person, company, or corporation who should be the highest bidder for such franchise, as soon as the publication thereof could be made and bids received as required by the city charter; that the city council thereby determined to grant the franchise to the person, company, or corporation who would pay therefor the highest percentage of the gross annual receipts, not less than 2 per cent. thereof; the route over and along which the proposed franchise should be granted; the time in which bids therefor should be filed with the city comptroller; and directed that notice of the application for the proposed franchise, the determination of the city council to grant the same, and all other matters required by the city charter to be published in connection therewith, be published for 10 days daily in the city official newspaper, and also that 'the said council bill No. 595 shall also be published by the city comptroller in the city official newspaper at the expense of the said applicants for the same ten days daily, the said council bill containing the terms and conditions of the said franchise as proposed to be granted by the city council.' The city comptroller complied with the command expressed in the resolution by publishing the required notice, in which he set forth at length the resolution as passed by the city council, and appended thereto the proposed bill or ordinance. The proposed ordinance, as published, is entitled as follows: 'An ordinance granting to J. D. Lowman and Jacob Furth, their successors and assigns, a franchise to construct, maintain and operate street railways in the city of Seattle.' In the first section of the ordinance J. D. Lowman and Jacob Furth, their successors and assigns, are named as the grantees of the proposed franchise. Elsewhere in the ordinance, where it became necessary to speak of the grantees, the words 'the grantees' or 'said grantees' are used; and in the clause fixing the amount of the gross receipts required to be paid to the city a blank space was left, to be filled in when such amount should be determined. By the terms of the ordinance, the franchise to be granted thereby ceased and determined at 12 o'clock midnight December 31, 1934. The proposed ordinance does not describe one continuous route, but describes some 22 separate routes, numbered in the ordinance from 1 to 22, inclusive. A portion of these routes is covered by existing street railways, operated under some seven different franchises. Of these, six were granted prior to the adoption of the present city charter, and one afterwards. The franchises of the first six mentioned expire by their own limitations between the years 1913 and 1917, and the seventh one in the year 1944. In each it is expressly provided that it shall not be deemed exclusive. Section 3 of the proposed ordinance prescribes minutely the time within which a street railway shall be constructed and in operation over the several routes and parts of routes described therein, with the method and manner of such construction, and contains the following clause:

'The several parts of the system of railways hereby authorized shall be completed, and the operation thereof under this franchise be begun in good faith within the respective times stated in this section, unless prevented by accident, act of God, strikes, act of the city, inability to obtain material or legal proceedings in court: provided that the acquisition by purchase or otherwise by the grantees, their successors or assigns, of any existing railway or railways, or any parts thereof, on any of the said routes or parts of routes, and the bringing of the same under the operation of this...