206 F. 955 | W.D. Wash. | 1913
The present bill was filed to enjoin the city of Seattle and certain of its officers from enforcing an ordinance of the city, entitled “An ordinance requiring the sale of street car tickets on street cars in the city of Seattle, limiting the price to be paid therefor, and providing penalties for violation,” which became operative on the 30th day of October, 1911.
On the 31st day of March, 1900, the city, by ordinance, granted to the assignors of the plaintiff a franchise to construct and operate a street railway over certain designated streets in the city for the term ending at midnight on the 31st clay of December, 1934. The ordinance
The grantees, their successors and assigns, may establish and take a passenger toll or fare which shall not exceed the sum of five cents for a single continuous ride one way over any line or lines owned or controlled by the grantees, their successors or assigns, between points situated within the city limits or points on either of the extensions mentioned in section 13 hereof (when constructed or acquired), although a transfer or transfers shall be necessary; but no such transfer shall be good except upon the first connecting car at the point of transfer.
The grantees, their successors and assigns, shall keep on sale for one dollar each, at their main office and power stations within the city, commutation tickets entitling the purchaser to twenty-five rides. Such tickets shall not be transferable nor entitle the owner to a transfer, and the company may make such reasonable regulations in regard to the issue and use of the same as to enforce these provisions.
Numerous other franchises granted to the plaintiff by the city contained similar provisions. The ordinance of October 30, 1911, provides in its first section:
That all persons, companies or corporations owning, controlling or operating street cars in the city of Seattle be and they are hereby required to place on sale in each and every street car owned and operated by them within the city of Seattle street car tickets at a price not exceeding twenty-five (25) for one dollar or six (6) for twenty-five cents.
Section 2 provides a penalty for the violation of the preceding section, and section 4 provides when the ordinance shall take effect. It is the contention of the plaintiff that the latter ordinance impairs the obligation of the contract embodied in the earlier ordinance, in violation of section 10 of article 1 of the Constitution of the United States, and deprives it of its property without due process of law, and denies to it the 'equal protection of .the laws, in violation of the fourteenth amendment to the Constitution, of the United States.
Thus section 8 defines the terms “street railroad,” “street railroad company,” “common carrier,” and “public service companies,” and the terms “common carrier” and “public service companies,” as there defined, include street railroads and street railroad companies. Section 9 provides that all charges made for any service rendered or to be rendered in the transportation of persons or property by any common carrier shall be just, fair, reasonable, and sufficient; that every com-
These several provisions and others that might be cited are in my opinion utterly inconsistent with the existence in one of the municipalities pf the state of the power to enact an ordinance such as the one in question. In discussing the effect of a similar act on municipal charter provisions in California-Oregon Power Co. v. City of Grants Pass (D. C.) 203 Fed. 173, Judge Bean said:
“It tiras appears that the purpose of the Legislature in adopting the law and the people in approving it was to provide a uniform system throughout the state for the control and regulation of xrablie matters, and fixing the rates to be charged by them, and to create a tribunal for that purpose. By that act the power to fix the rates to be charged by public service corporations conferred on the different cities of the state by their charters is transferred to the Railroad Commission, and such charter provisions are therefore amended or superseded as far as they are in conflict or inconsistent: with the powers so conferred. ■ * * * When a public utility has filed its schedule of rates, as required by law, such schedule fixes the only rates which it may lawfully charge or collect until they are changed in the manner provided bylaw. If it does charge or receive any greater or less compensation, it is liable under the public utility law to a fbrfeiture for each offense, and its agent or officer offending to a fine. It follows, therefore, that after such schedule has been filed the power of a municipal corporation to change or modify the rates therein stated no longer exists, because it is inconsistent with the provisions of the Utility Act and the obligations and liabilities of public service corporations thereunder. If the rates stated in the schedule filed by the plaintiff company are unreasonable or unjust, the city has a remedy by the proper proceedings before the commission; but it cannot prescribe other rates by ordinance and punish the plaintiff or its officers for a failure to observe them.”
If the plaintiff in this case obeys the ordinance in question, it violates the law of the state, because the charges made are less than those
“They possess, according to many courts, a double character — the one governmental, legislative or public; the other, in a sense, proprietary or private. The distinction between them, though sometimes difficult to trace, is highly important, and is frequently referred to, particularly in the cases relating to the implied or common-law liability of municipal corporations for the negligence of their servants, agents, or officers in the execution of corporate duties and powers. On this distinction, indeed, rests the doctrine of such implied liability. In its governmental or public character, the corporation is made by the state one oí its instruments, or the local depositary of certain limited and prescribed political powers, to be exercised for the public good on behalf of the state, and for itself.” Dillon on Mun. Oor. 39.
And for acts done by them in their public or governmental capacity, and in discharge of the duties imposed upon them for the public good, they partake of the state’s immunity from suit and incur no liability to persons who may be affected or injured by their acts. In Fowle v. Alexandria, 3 Pet. 398, 409, 7 L. Ed. 719, Chief Justice Marshall said:
“Ts a municipal corporation, established for the general purposes of government, with limited legislative powers, liable for losses consequent on its having misconstrued the extent of its powers, in granting a license which it had not authority to grant, without taking that security for the conduct of the person obtaining the license, which its own ordinances had.been supposed to require, and which might protect those who transacted business with the person acting under the license? We find no case in which this principle has been affirmed. That corporations are bound by their contracts is admitted; that moneyed corporations, or those carrying on business for themselves, are liable for torts, is well settled; but that a legislative corporation, established as a part of the government of the country, is liable for losses sustained by a nonfeasance, by an omission of the corporate body to observe a law of its own, in which no penalty is provided, is a principie for which we can And no precedent. We are not prepared to make one in this case.”
In Trescott v. City of Waterloo (C. C.) 26 Fed. 592, the court said;
■’Again, the action of the city in adopting the ordinance in question was, upon its part, a legislative act, and the exercise of a right of sovereignty primarily belonging to the state, but by the state delegated to the city. For errors of judgment in the exercise of such powers the cities are not liable in their corporate capacity.”
“With regard to the liability of a public municipal corporation for the acts of its officers, the distinction is between an exercise of those legislative powers which it holds for public purposes, and as part of the government of the country, and those private franchises which belong to it as a creátion of the law. Within the sphere of the former it enjoys the exemption of the government from responsibilities for its own acts and for the acts of those who are independent- corporate officers, deriving their rights and duties from the sovereign power.”
See also, Trammell v. Town of Russellville, 34 Ark. 105, 36 Am. Rep. 1; 28 Cyc. 1262.
The distinction between governmental powers and mere private franchises has often been recognized by the courts of this state, and the nonliability of municipalities for acts committed in the exercise of the former has been asserted in the most positive terms. Lawson v. Seattle, 6 Wash. 184, 33 Pac. 347; Simpson v. Whatcom, 33 Wash. 392, 74 Pac. 577, 63 L. R. A. 815, 99 Am. St. Rep. 951; Lynch v. North Yakima, 37 Wash. 657, 80 Pac. 79, 12 L. R. A. (N. S.) 261; Cunningham v. Seattle, 40 Wash. 59, 82 Pac. 143, 4 L. R. A. (N. S.) 629; s. c., 42 Wash. 134, 84 Pac. 641, 4 L. R. A. (N. S.) 629, 7 Ann. Cas. 805. If a municipality ever acts in a purely governmental capacity, it would seem to so- act in the passage of an ordinance of this kind in relation to a subject in which the general public is alone concerned, and in which it has no private or proprietary interest.
For the foregoing reasons, the claim for damages is disallowed, and a permanent injunction will be granted according to the prayer of the complaint, with costs to the plaintiff. Let a decree be entered accordingly. I have delayed a decision in this case for some time, in the hope that the Supreme Court of the state might determine the effect of the Public Service Commission Law on pre-existing legislation and charter provisions in a case now pending before it, but in justice to the litigants before the court I do not feel warranted in withholding my decision longer. Either party may, however, file a petition for a rehearing within 30 days after final decree, if so advised, in order to retain jurisdiction in this court until the Supreme Court reaches a decision. Sutfi petition will not stay or supersede the injunction now granted.