173 P. 1178 | Or. | 1918
The essence of the dispute presented in this litigation is whether upon the application of a public service corporation like the company the Public Service Commission of the state had the authority to change the rate of fare prescribed by the city ordinances giving the company the right to oper
The charter under which the City of Portland operates was embodied in an act of the legislative assembly approved January 23, 1903, and approved by a popular vote of the citizens of that municipality. Section 3 of that act declares that the city
“shall be invested within its limits with authority to perform all public services and with all governmental powers, except such as are expressly conferred by law upon other public corporations and subject to the limitations prescribed by the constitution and laws of the state, except as hereinafter provided.”
Respecting the grant of franchises, the authority therefor is found in Section 94, reading thus:
“The council may, subject to the limitations and conditions contained in this charter, grant, for a limited time, specific franchises or rights in or to any of the public property or places mentioned in the preceding sections. Every such grant shall specifically set forth and define the nature, extent and duration of the franchise or right thereby granted, and no franchise or right shall pass by implication. A.t all times the power and right reasonably to regulate in the public interest the exercise of the franchise or right so granted shall remain and be vested in the council, and said power and right cannot be divested or granted.”
The next following section limits to a period of twenty-five years the time for which a franchise may be granted and requires that the amount and manner
The legislative assembly of this state afterward passed the act of February 24, 1911, entitled:
“An Act to define public utilities, and to provide for their regulation in this State, and for that purpose to confer upon the Eailroad Commission of Oregon power and jurisdiction to supervise and regulate such public utilities, and providing the manner in which the power and jurisdiction of such Commission shall be exercised, prescribing penalties for the violation of the provisions of this Act and the procedure and rules of evidence in relation thereto, making an appropriation to carry out the provisions hereof, amending Section 2 of Chapter 53 of the Laws of Oregon for the year 1907, the same being Section 6876 of Lord’s Oregon Laws, and declaring an emergency. ’ ’
By proper legislation the Eailroad Commission referred to in the act has since been denominated the Public Service Commission. Among other things, any plant or equipment used for the transportation of persons or property by street railways as common carriers is defined by the statute to be a public utility. Section 6 of the law vested the commission “with power and jurisdiction to supervise and regulate every public utility in this state and to do all things necessary and convenient in the exercise of such power and jurisdiction.”
Section 7 in part reads thus:
“Every public utility is required to furnish adequate and safe service, equipment and facilities, and*330 the charges made by any public utility for any * * transportation of persons or property by street railroad, or for any service rendered or to be rendered in connection therewith shall be reasonable and just and every unjust or unreasonable charge for such service is prohibited and declared to be unlawful.”
It is said in Section 33:
“The commission shall provide for a comprehensive classification of service for each public utility and such classification may take into account the quantity used, the time when used, the purpose for which used, and any other reasonable consideration. Each public utility is required to conform its schedules of rates, tolls and charges to such classification.”
In Sections 41 to 46, inclusive, it is laid down that the commission may prescribe reasonable rates, etc., after a hearing either on the complaint of any mercantile, agricultural or manufacturing society or by any body politic or municipal organization or by any three persons, firms, corporations or associations (Section 41); or on its own motion (Section 45); or on the petition of the public utility itself (Section 46). Section 51 empowers the commission after investigation to order the substitution of reasonable rates and charges instead of those which it shall find to be unjust or unreasonable, and, by the following’ section, it may afterward revise its own decision. Under Section 54, any public utility or other person, persons or corporation interested in, or affected by, any order of the commission fixing any rates, tolls, charges, schedules and so forth, may sue in the county where the hearing was held, to set aside the order on the ground that it is unlawful. It is said substantially in Section 61 that every municipality shall have power to determine by contract, ordinance or otherwise the quality and character of service furnished by any public util
“Provided, however, that no ordinance or other municipal regulation shall be reviewed by the commission under this section which was prior to such review enacted by the initiative or which was prior to such review referred to and approved by the people of said municipality or while a referendum thereon is pending.”
In substance, it is stated in the complaint that since the adoption of the public utilities statute the City of Portland, operating by the initiative process, amended its charter so as to assume, so far as it had power so to do, the right to regulate and prescribe rates, and other matters, practically the same as the Public Service Commission. It does not appear, however, in that pleading that the city ever attempted to pass any ordinance changing the previously granted franchise of the company, and it is sufficient to say in this connection that the only acts of the city sought to be reviewed by the commission in this instance were the ordinances passed by the common council. These were never referred to the people for their approval and were not the subject of the initiative process. Plainly they are not within the restriction of the quoted proviso.
“That passing ordinances based upon the grant or referred to the municipal council of Cleveland was exercising a portion of the authority of the state, as an agency of the state cannot in reason be disputed.”
So, in this instance, the state in the exercise of its legislative power created the City of Portland its agent for the purpose of initiating an arrangement whereby the company could operate its cars and charge a compensation therefor within the city. The state might have appointed any other agency to work out the same result. It did not in any sense surrender its right to recall that agency and confer it upon another. It did not in any manner, nor could it, abdicate its authority under the police power to enforce a reasonable rate of fare as against the stipulations of contracting parties. That the regulation of rates is a prerogative of the state as to carriers operating wholly within its .borders is taught in Simpson v. Shepard, 230 U. S. 352 (Ann. Cas. 1916A, 18, 48 L. R. A. (N. S.) 1151, 57 L. Ed. 1511, 33 Sup. Ct. Rep. 729). The legislature in delegating this authority to the city by the 1903 charter did not, nor could it, undertake to control the future legitimate exercise of the law-making power. The authority to delegate involves the power to-revoke. That this may not be done in this instance by special law enacted by the legislative assembly amounting to a direct amendment of the Portland charter is granted; but that a general law of paramount authority over all municipal charters constitutionally may be enacted by the legislative assembly is taught in Rose v. Port of Portland, 82 Or. 541 (162 Pac. 498). Covering the whole field of public utilities throughout the state as it does, except those owned
The principal features of the instant case are controlled by Woodburn v. Public Service Commission, 82 Or. 114 (161 Pac. 391, Ann. Cas. 1917E, 996, L. R. A. 1917C, 98). The voluminous briefs and multitude of precedents cited by industrious counsel have been carefully examined and we discern no reason for changing the rule announced in that case. Substantially the same conclusion was reached by the Supreme Court of Montana in State ex rel. v. Billings Gas Co., 173 Pac. 799, decided June 24, 1918, and not yet reported officially. Other cases, among still other numerous precedents which might be cited, will aid in the investigation of the question and are here noted: Worcester v. Worcester Consol. St. Ry. Co., 196 U. S. 539 (49 L. Ed. 591, 25 Sup. Ct. Rep. 327); Hudson County Water Co. v. McCarter, 209 U. S. 349 (14 Ann. Cas. 560, 52 L. Ed. 828, 28 Sup. Ct. Rep. 529); Home Telephone & Telegraph Co. v. Los Angeles, 211 U. S. 265 (53 L. Ed. 176, 29 Sup. Ct. Rep. 50); Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467 (34 L. R. A. (N. S.) 671, 55 L. Ed. 297, 31 Sup. Ct. Rep. 265); Portland Ry., Light & Power Co. v. Railroad Commission, 229 U. S. 397 (57 L. Ed. 1248, 33 Sup. Ct. Rep. 820); Board of Survey v. Bay State Street Ry. Co., 224 Mass. 463 (113 N. E. 273); Benwood v. Public Service Commission, 75 W. Va. 127 (83 S. E. 295, L. R. A. 1915C, 261, and notes); Pinney & Boyle Co. v. Los Angeles Gas & Electric Corp., 168 Cal. 12 (141 Pac. 620, Ann. Cas. 1915D, 471, L. R. A. 1915C, 282); State ex rel. Webster v. Superior Court, 67 Wash. 37 (120 Pac. 861, Ann. Cas. 1913D, 78, L. R. A. 1915C, 287).
The Circuit Court was right in dismissing the bill and its decision is affirmed. Affirmed.