61 Wash. 434 | Wash. | 1911
Lead Opinion
Appellant, the superintendent in charge of the running and operation of the street car system of the city of Tacoma, belonging to the Tacoma Railway & Power Company, was convicted of a violation of Ordinance No. 3,883 of said city, and prosecutes this appeal.
Said ordinance is as follows:
“An ordinance regulating the operation of certain street cars in the city of Tacoma by the Tacoma Railway & Power Company, and providing a penalty for the violation thereof.
“Whereas, the street railway service rendered by the Tacoma Railway & Power Company over its line from South Ninth street to Union avenue, South Tacoma, along ‘C’ street, Jefferson, avenue, Pacific avenue, Delin street, ‘G? street, South 38th street, ‘M’ street, South Fifty-sixth street, Railroad street and South Fifty-fourth street is inadequate, in that a sufficient number of cars are not operated to accommodate the number of passengers ;
“Now, Therefore, be it ordained by the city of Tacoma:
“Section 1. That from and after October 5th, 1909, the Tacoma Railwav & Power Company, its managers, servants*437 and agents, be required to operate at least one passenger street car each way every ten minutes between South Ninth street and Union avenue (South Tacoma), between the hours of 5: 30 o’clock a. m., and 12: 30 o’clock a. m., following, and one car each way every five minutes between the hours of 6 o’clock and 8 o’clock a. m., and between the hours of 5 o’clock and 7:30 o’clock p. m., over its line along South ‘C’ street,, Jefferson avenue, Pacific avenue, Delin street, ‘G’ street, South Thirty-eighth street, ‘M’ street, South Fifty-sixth street, Railroad street and South Fifty-fourth street.
“Section 2. Every person violating the provisions of this ordinance shall, on conviction thereof, be fined in any sum not exceeding one hundred dollars.
“Section 3. Each day’s failure of said Tacoma Railway & Power Company to comply with the provisions of this ordinance shall constitute a separate offense.”
Appellant urges two grounds of error: (1) The ordinance is unconstitutional, and violates the guaranties of both the state and Federal constitution, in that it seeks to impair the obligations of a contract and to deprive the street railway company of its property without due process of law; and (2) the city was without authority to pass the ordinance, it was not authorized under the specific provisions of the city charter conferring power over street railways, nor can it be sustained as a valid exercise of the police power.
The street railway line referred to in the ordinance, from South Ninth street to Union avenue, South Tacoma, is known as the South Tacoma line, and is operated over portions of ten different streets. The right to operate over these different streets was conferred by three different ordinances, passed at as many different times, and containing different provisions and conditions affecting the franchise therein granted. The tracks on Jefferson avenue, Pacific avenue, and C street are operated under franchise granted by Ordinance No. 152 as amended by Ordinance No. 238. This ordinance was passed in 1887, and § 5, as amended in 1889, provides as follows:
“The city council may regulate the speed for running the*438 cars and may require the cars to be run on or over the lines •of said railways sufficient round trips each day, and no cars shall be allowed at any time to stop and remain upon any intersection of streets for a longer period than three minutes, and any violation of the provisions of this section shall subject the owners of said railways to a fine of not less than, five or more than twenty-five dollars for every offense upon conviction thereof before any court having jurisdiction.”
The tracks on Delin and G streets are operated under Ordinance No. 188, passed in 1888, § 6 of which is as follows:
“The city council may regulate the speed for running the ■cars and may require cars to be run two round trips each day on all completed portions of said railway after one mile thereof is completed. No car shall be allowed at any time to stop or remain upon any street intersection. The fare upon «aid railway over the whole, or any part thereof, shall not ■exceed five cents for each passenger, including ordinary personal hand baggage. Any violation of the provisions of this section shall subject the owners of said railway to a fine of not less than five or more than twenty-five dollars for every offense, upon conviction thereof before any court having jurisdiction.”
The franchise for the remaining streets was granted by ■Ordinance No. 860, passed in 1893, § 12 of which is as follows :
“Nothing in tins ordinance shall be so construed as to prevent the city council of the city of Tacoma from passing all ■ordinances and resolutions necessary for the protection of the interests of the city, and to carry out the spirit and provisions of this franchise or ordinance, or from granting to any ■other street railway the right to cross the tracks of the line or lines of this railway at the same grade.”
Appellant’s contention is that Ordinance No 3,883, in providing for a five-minute service over the entire South Tacoma line, is an attempted impairment of the obligation of the contracts between the city and the railway company, as established by the various franchises; that as to the first group of streets, the city is not authorized by the franchise to determine what shall be “sufficient round trips each day,” as
The suggestion first advanced in support of these contentions is that a' franchise grant to a public service corporation is in the nature of a contract, equally binding upon both the city and the railway company, and that an attempt of the city to abrogate any of the rights conferred by the passage of a subsequent ordinance is an impairment of a contract obligation and hence void. So far as being a correct statement of the law, the above position may be admitted, but in our opinion it has no place in the determination of the question before us.
A good illustration of the correct application of the above rule of law may be found in Minneapolis v. Minneapolis St. R. Co., 215 U. S. 417, cited by appellant as supporting his application of the rule. In 1875 the city of Minneapolis gave a franchise to the railway company for fifty years, by the terms of which the company had the right to charge a fare not exceeding five cents on any continuous line not exceeding
The fact that the provisions of Ordinance No.- 3,883 are more specific than the expression of the general power reserved in the initiating ordinances does not destroy the specific enactment, but leaves for determination the question whether such specific requirement is reasonable. If so, it will be sustained; if not, it will be held invalid. Elliott, Railroads, 1624. And “the question of reasonableness usually resolves itself into this: Is the regulation carried to a point where it becomes prohibition, destruction, or confiscation.” Freund, Police Power, 61. Reasonableness in this connection is a question of fact, and will be presumed, the burden of proof being upon those asserting unreasonableness, of which there was no evidence in this case.
In People v. Detroit Citizens’ St. R. Co., 116 Mich. 132, 74 N. W. 520, an ordinance was passed in 1897, requiring the railway company to maintain a six-minute service on certain 'streets between prescribed hours, under a franchise granted the railway company in 1862. It was provided that cars should be run as often as public convenience required, but
A like argument might well be used in referring to the city of Tacoma in 1887 and 1888, the years of the passage of the first two ordinances, one of which provided that the city council might require the cars to be run “sufficient round trips each day,” and the other “two round trips each day.” Sufficient for what? Manifestly not for the convenience of the railway company, but the convenience and demands for reasonable transportation on the part of the residents of the city whose inhabitants at that time looked forward to its becoming a great city before the life of the granted franchise had expired; and as it increased in population, so would there be an increased demand for an improved street railway service, recognized by the city in reserving to itself,
Nor is this a question for judicial determination, as contended by appellant, but what would be “sufficient round trips each day” is purely a legislative question to be determined and solved by the common council of the city, subject to a review by the courts upon the question of the authority and reasonableness of its act. So the provisions of the second ordinance, requiring cars to run two round trips a day, is not, as contended for by appellant, the expression of an intention to not require more trips; it is nothing more than an expression of the minimum service regarded by the city as being sufficient for the demands of the then city in the territory covered by the franchise. As to the third provision found in § 12 of Ordinance 860, appellant contends it to be simply a declaration of a reservation of the police power. If it is such a declaration, then such a reservation, if needful, would be ample to invest the city with full power to pass Ordinance No. 3,883, as we shall argue more fully hereafter.
Referring again to the rule of “reasonableness,” as determinative of the effect of subsequent requirements upon franchise regulation, a good case may be found in State, Trenton Horse R. Co. v. Trenton, 53 N. J. L. 132, 20 Atl. 1076, 11 L. R. A. 410. The charter of the city of Trenton conferred general power to pass ordinances necessary arid proper for the good government, order, and protection of persons and property; also power to prescribe the manner in which corporations should exercise any granted privilege in the use of the streets. Under these grants the city based its right to pass an ordinance requiring horse railways to have an agent, in addition to the driver on each car. The ordinance being attacked for lack of power, the court held that neither of the above enumerated powers added anything to the right of the city to exercise the police power, and the
“In concluding whether the ordinance under consideration is a reasonable precaution in favor of the public safety and order, we must regard it in the light of the following conditions which surround the question: First. A rule of construction to be applied is, that when an ordinance is passed upon a matter clearly within a general power, the presumption is in favor of its reasonableness. The judicial power to declare it void can only be exerted when from the inherent character of the ordinance or from evidence taken showing its operation it is demonstrated to be unreasonable.”
See, also, Mayor etc. of New York v. Dry-Dock E. B. & B. R. Co., 133 N. Y. 104, 30 N. E. 563, 28 Am. St. 609; Van Hook v. Selma, 70 Ala. 361, 45 Am. Rep. 85; North Jersey St. R. Co. v. Jersey City, 75 N. J. L. 349, 67 Atl. 1072.
In the present case there was no attempt to show Ordinance No. 3,883 was unreasonable. Nor is there in its inherent character anything which would move the court to hold it unreasonable as a matter of law, and thus declare it void. We, therefore, hold upon the first point reserved by appellant, that the ordinance in question is not an attempt to impair the obligations of a contract, and therefore void.
Much of the second assignment of error is involved in what has already been said. We will, however, discuss it more in detail. All courts concede the impossibility of adopting fixed rules by which to test the validity of laws passed under the police power. It covers a wide range of subjects, but is especially occupied with whatever affects the peace, security, health, morals, and general welfare of a community. While originally it was used as a rule to indicate the protective function of the government, its development of late years has been in the direction of the function of the state that cares for the general welfare. Social Progress & the Police Power, 36 Am. Law Review, 681. As was said by Chadwick, J., in Bowes v. Aberdeen, 58 Wash. 535, 109 Pac. 369:
*444 “Its exercise in proper cases marks the growth and development of the law rather than, as some assert, a tyrannical assertion of governmental powers denied by our written constitution.”
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. Karasek v. Peier, 22 Wash. 419, 61 Pac. 33, 50 L. R. A. 345. That it, when generally reserved, vests ample power in the common council of a city, having in mind the general welfare of the traveling public, and the health and safety of the citizen, endangered by crowded and heavily loaded cars, to determine by ordinance the frequency with which cars should be run upon the public streets, is to our mind demonstrated both upon principle and by authority. In Detroit v. Detroit Citizens’ St. R. Co., 184 U. S. 368, the court held that a general reservation in a franchise to make such regulations as may from time to time be deemed necessary to protect the interest, safety, welfare, or accommodation of the city and public, while not sufficient to permit the city to pass an ordinance changing the rate of fare, was ample in regard to all matters incident to the operation of the road such as “in the interest of public travel, the frequency with which cars should be run for the public convenience.” Such a reservation is not as broad as that contained in Ordinance No. 152, supra; nor it is in effect any broader than the reservations contained in Ordinances Nos. 188 and 860. In Lawton v. Steele, 152 U. S. 133, the court says the police power is universally conceded to include everything essential to the public safety, health and morals, and includes “the regulation of railways and other means of public conveyance.” Joyce on Franchises thus states the same rule, in § 387:
“A municipality under its right to make resonable regulations concerning the use of its streets by a street railroad company may limit the speed of its cars, or the length of time of service or of running of cars on certain streets.”
“The power is continuing and no grant that can be made legally can .destroy it. Therefore, the municipal corporation in granting franchises for the use of streets may not divest itself of the authority of control and regulation. It is true, under our constitutional system, that, neither vested rights can be destroyed, nor the obligation of contracts impaired. But public necessity may, legally, limit or control these fundamental rights, only, however, in the reasonable exercise of the sovereign police power. The police power to regulate comprehends all necessary and convenient regulations designed to protect life or limb, or to promote the comfort of the public in the use of the streets and thoroughfares. Not only does such power exist, but the duty to exercise it is imposed as a solemn obligation upon the municipal authorities.” McQuillan, Municipal Ordinances, § 473.
See, also, Petz v. Detroit, 95 Mich. 169, 54 N. W. 644.
Maintaining, then, that .the city of Tacoma had reserved to itself ample police power to pass Ordinance No. 3,883, the next inquiry naturally is, has the city the power to use this reserved power. The general police power conferred upon municipal corporations by the constitution is found in art 11, § 11:
“Any county, city, town, or township, may make and enforce within its limits all such local, police, sanitary, and ■other regulations are not in conflict with general laws.”
The general powers delegated by the state to cities of the first class are enumerated in Rem. & Bal. Code, § 7507, among them:
“9. To authorize or prohibit the locating and construct*446 ing of any railroad or street railroad in any street, alley, or public place in such city, and to prescribe the terms and conditions upon which any such railroad or street railroad shall be located 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 said city; and to provide by ordinance for the protection of all persons and property against injury in the use of such railroads or street railroads.”
Under subdivision 36 of the same section, is granted the right to provide for the punishment of all practices dangerous to public safety, and to make regulations necessary for the preservation of public health, peace, and good order; and to provide for the punishment of all persons violating any of the ordinances. These provisions of the constitution and statute would seem to be a sufficient conferring of police power upon the municipality by the state. The charter of Tacoma, passed under these general powers, contains, in § 52, subdivision 9, the assertion of its authority “to regulate the moving and operation of railroad and street railroad trains, cars and locomotives within. the corporate limits, and to provide for the protection of persons and property against injury in the use of such railroads and street railroads.” While, under subdivision 36, it asserts its power to pass penal ordinances, in the language of subdivision 36,. supra. These constitutional, statutory and charter provisions show a sufficient conferring of power upon the municipality by the state, and the assertion on the part of the municipality to use all such power conferred. The police power being ample, then, to sustain Ordinance No. 3,883, and the exercise of this power having been conferred upon the city, and the city having exercised it as conferred, appellant’s second objection, that the ordinance is not justified . and cannot be vindicated as a valid exercise of. the police power, must also fail.
Appellant, in connection with his second assignment of
“The street railway is what its name signifies, a railway on a street to facilitate its use as a way for persons to pass from one point to another in the city, or through the city; but with the advent of electricity as a motive power the street railway was extended to the suburbs, and as a result of development in its use it has been found practicable to operate cars for long distances, so that now we have the interurban railway, extending from city to city, over the streets and upon or along the highways. ... If every city and village through which such a railway passes may require its cars to be stopped at every street intersection to take on or to discharge passengers, and to serve the purposes of a street railway, then its usefulness as a means of interurban transportation may be very much limited, because so much time will be consumed in passing through cities and villages that it will no longer be practicable for many to travel that way. Councils may reasonably be expected to be actuated by considerations of local convenience rather than those of the public and in view of the importance of the subject, and its comparatively recent origin, it would seem to be a matter for consideration by the legislature, and it is in view of these considerations that we reach the conclusion that the power has not been conferred by the general terms' of section 28.”
From the above reasoning it is apparent that the decision on this branch of the case is based upon the character of the railway — an interurban, as distinguished from a local street railway — and the holding of unreasonableness is due to the impracticability of stopping the cars of such a railway at every street crossing in every city. Such reasoning is of no value here. In the Young case, the state of Minnesota passed an act fixing two cents a mile as the maximum passenger rate in that state. The act further declared that “any railroad company or any officer, agent, or representa
We, therefore, conclude that the judgment of the court •below was right upon the law, and the same is affirmed.
Crow and Dunbar, JJ., concur.
Dissenting Opinion
(dissenting) — Before •an officer of a street railway company can be held hable ■criminally for the violation of an ordinance requiring the 'company to make repairs, maintain schedules, etc., it must affirmatively appear that the company has supplied him with both the means and the authority to comply with the requirements of the local law, otherwise the ordinance is manifestly unreasonable and oppressive. Town of Oxanna v. Allen, 90 Ala. 468, 8 South. 79.
We think both the complaint and findings in the case at bar are deficient in this respect, and therefore dissent.