Appellants Brief — Railroad Comm'n of Cal. v. Los Angeles R. Corp.

Supreme Court brief1929

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SUPREME COURT

UNITED STATES.

Ocroper TERM, 1929.

No. 60.

T he Railroad Commission of the State

of California, and the City of Los

Angeles, a municipal corporation,

Appellants,

US.

Los Angeles Railway Corporation, a

corporation,

Appellee.

BRIEF ON BEHALF OF APPELLANT, CITY OF

LOS ANGELES.

Erwin P. WERNER,

City Attorney;

FREDERICK VON SCHRADER,

Deputy City Attorney;

j Josepn T. Watson,

Deputy City Attorney,

Los Angeles, California.

Attorneys for Appellant, City of Los Angeles.

Parker, Stone & Baird Co., Printers, Los Angeles,

TOPICAL INDEX.

PAGE

I AN os cscisctanbeenasavonenensns 4

Specification of Assigned Errors to Be Urged.. 8

SIIIIIIUE ° iasionyingcebarenneneiannvenns sonenbasensvonasivnepnbeianoubeupeninabeaterecesevasndarvisech 12

I.

The Franchises in Question Are Contracts....... 12

II.

The City Had Power to Enter Into Such Contracts, Includ-

ing the Fixing of Maximum Charges.................22.221e0:0-00-+ 24

IIT.

It Is Immaterial That a Rate for Public Service Fixed by

Valid Contract Between a Municipal Corporation and a

Public Service Corporation May Be Confiscatory.................. 38

IV.

The Public Utility Can Seek No Relief From the Courts

Unless It Secures a Change of the Franchise Rates by

Order of the State Railroad Commnission...................2...-..-. 39

V.

There Was No Change From the Contract or Franchise Rate

to a Statutory or Legislative Rate Due to the Orders of

the Railroad Commission, Either

ee: (a) Under the May, 1921, Application and Order (De-

S cision No. 9029); or,

s (b) Under the March 26, 1928, Decision and Order (No.

% NIE <sicciaassinpssesnniestsossngeixdiearenibiae selheieialishinagscateabmadosue 43

VI.

The Absence of California Decisions Upholding the Power of

the City to Contract With Reference to Rates Is Immate-

___ 2h ea eee 55

Conclusion 56

TABLE OF CASES.

PAGE

Augusta-Aiken Ry. & Elec. Corp. v. R. R. Comm., 281 Fed. 977 34

City of Albany v. U. S. Fid. & Guar. Co., 38 Cal. App. 466...... 22

City of Denver v. Stenger, 277 Fed. 865 ... 36

City of Manitowoc v. Manitowoc etc. Traction Co., 145 Wis.

13, 129 N. W. 925 ..40, 54

City of Opelika v. Opelika Sewer Co., 265 U. S. 215, 68 L.

Ed. 985 a 25, 27, 36

City of San Diego v. Kerckhoff, 49 Cal. App. 473......................-. 22

Cleveland v. Cleveland City Ry. Co., 194 U. S. 517.0022... 38

Columbus Ry. Co. v. City of Columbus, 294 U. S. 399, 63 L.

Ed. 669 ick Rte RSE SRO a 25, 38

Denney v. Pac. Telephone & Tel. Co. (1928), 276 U. S. 97, 72

a alcasted 34

Detroit v. Detroit etc. Ry. Co., 184 U. S. 368.2000... 39

Henderson Water Co. v. Corp. Comm., 269 U. 8. 278, 70 L.

NG ME Saipan BPE SIS Et: LETT 39, 40, 50

Henrici v. South Feather Land etc. Co., 177 Cal. 442...00000000...., 52

Lenawee County Gas & E. Co. v. City of Adrian, 209 Mich. 52,

176 N. W. 590. 41, 50, 51

Los Angeles Ry. Co. v. City of Los Angeles, 152 Cal. 242...... 23

Madera Water Works v. City of Madera, 185 Fed. 281............ 22

Milwaukee Elec. Ry. v. Wis. R. R. Comm., 238 U. S.

174. ; 40, 54, 55

Miss. R. R. Comm. v. Mobile & Ohio R. R. Co., 244 U. S.

SI i 34

Monroe v. Detroit M. & T. Shortline R. Co., 187 Mich. 364, 153

N. W. 669 ...43, 52

Moorehead v. Union Light, Heat & Power Co. (District Court),

I asa ececc ciate cba Alaa ndcovedsbs ni aintanescsincns topcabceamiontbaneies 51

Muscatine Lighting Co. v. City of Muscatine, 255 U. S. 539, 65

L. Ed. 764. aD a ET an

Pacific Telephone & Tel. Co. v. Whitcomb, 12 Fed. (2d) 279...

42, 50, 51

Salt Lake City v. Utah L. & T. Co., 173 Pac. 556.....................--. 53

San Antonio Traction Co. v. San Antonio Pub. Serv. Co., 255

U. S. 547, 65 L. Ed. 777

Smith v. Ill. Bell Tel. Co., 270 U. S. 587, 70 L. Ed. 747

Southern Pac. Co. v. Spring Valley Water Co., 173 Cal. 291... 53

Southern Utilities Co. v. City of Palatka, 268 U. S. 232, 69

L. Ed. 930 41, 51

St. Cloud Pub. Serv. Co. v. City of St. Cloud, 265 U. S. 352,

ge” SE. : eae inccs an aemeore 21, 27, 38

St. Helena v. San Francisco, etc. Ry., 24 Cal. App. 71................ 22

Title Guar. etc. Co. v. R. R. Comm., 168 Cal. 295, 142 Pac.

i RE RTO sk bialalslindicncadbineb acti 15

Travers City v. Mich. R. R. Comm., 168 N. W. 481.................... 53

Water Light & Power Co. v. City of Hot Springs, 274 Fed. 827 33

AUTHORITIES CITED.

Alabama State Constitution, Section 2.20........000000.ceeesceeceeeeeeeeneeeeee 26

Art. XII, Sec. 23, as amended Nov. 3, 1914...................... 15; 5.

California Constitution, Art. I, Sec. 21 -......2......0....c00cc0cesseseeevee 26, 36

Civil Code, Section 501.......................... biapticahcaiabingecndienisepeuin 15

i aca, sees epepaiccmnnlsaimtbnialans 32

Civil Code, Section 501, as amended in 1903....0002020000220..22cceesee- 32

Neen ee a cinindiachenccbanlbscdecbeibbecneuse 48

Se I UME, CUO RF a .. 48

ES | SRC Ie LST: ROLE 48

I i ane ascii 48

UN RPI: PENNE, COINS SBD nceciosocedesneieubpsbinndecedonsuisniasineaiypivsaslasaindiann 48

State Constitution, Section 2 of Article I, numbered 25, p. 994.. 17

State Constitution, Article XII, Sections 22 and 23...................... 14

I I ON IR Sepia Sechiinenpiccsbvinidcinakénkdairberiecplincdegiinepeiomensstusinit 15

A I I ti ahh baseascnedcdeparticSoneibienniigesseaihdicatn totaal 16

Stats. 1889, p. 455................-.- Ceantaanbbwcassebtecaniaataaaicial i6

SN NF sir iacignh celecciinadinnnnbiecsonietoncnsenincstinacetions 16, 29, 30, 37

I PE, WO I hy MOD anc caecinscnscovwnesesvensasisoenndernchosagibnomes 18, 37

Stats. 1893, p. 288. saiaincalcehee antacid sassicsickcgiactidanianie 19, 37

I I anee hhe cps od tad oescucipeainberenninisguibersunhsecegiin 20, 37

Stats. 1905, p. 777.. 20, 37

Stats. 1909, p. 125 20, 37

Se SUR De RO ices eels ..20, 37

Stats. 1891, p. 12—amending Sec. 497 of Civil Code............. 31, 37

Stats. 1915, p. 115, as amended Deering’s Genl. Laws of Cali-

fornia, 1923, Vol. II, p. 2683 48, 57

IN THE

SUPREME CouURT

OF THE

UNITED STATES.

OcTosBer TERM, 1929.

No. 60.

The Railroad Commission of the State

of California, and the City of Los

Angeles, a municipal corporation,

Appellants,

US.

Los Angeles Railway Corporation, a

corporation,

Appellee.

BRIEF ON BEHALF OF APPELLANT, CITY OF

LOS ANGELES.

This case was brought to this court on direct appeal

from an opinion and decree allowing permanent injunction

issued by the District Court of the United States, in and

for the Southern District of California, Southern Division,

three judges sitting, pursuant to proceedings had under

United States Code, title 28, section 380 (formerly Judicial

Code, section 266). Direct appeal from said decree allow-

ing a permanent injunction is expressly authorized by said

section of the United States Code.

per os

The opinion of the court is officially reported in 29

Federal Reporter (2nd Series), pages 140-148, and appears

in the printed record herein at pages 534-549. The decree

allowing injunction and injunction appear in the printed

record at pages 559-562 and 563-566, respectively.

Pursuant to paragraph one of rule 12 of this court

appellant Railroad Commission of California and aypellant

City of Los Angeles duly fixed herein their statement as

to the basis on which it is contended that this court has

jurisdiction to review the opinion and decree herein.

Pursuant to paragraph 9 of rule 13 of this court said

appellants duly filed herein a statement of points on which

they intend to rely on this appeal [R. 580]...

STATEMENT OF THE CASE.

The Los Angeles Railway Corporation, appellee herein,

operates its street railway system in the City of Los An-

geles under and pursuant to 114 franchises granted to said

Company and its predecessor companies by the cities of

Los Angeles, Vernon and Huntington Park, and the

county of Los Angeles.

Tae franchises in question were granted between the

years 1886 and 1927—all for terms of years varying be-

tween 21 and 50 years; four were granted between 1886

and 1891; forty-eight were granted between 1891 and

1905 ; twenty between 1905 and 1911; seven between 1911

and 1914; and twenty-three between 1914 and 1927 [R.

394 et seq.]. There are one hundred and two of these

franchises granted now effective, and the summary of

their classification [R. 387-388] shows that eighteen were

of Class “A,” providing that the rate of fare

can

“shall not be more than five cents for one continuous

ride in the same general direction within the corporate

limits of the city, except upon a showing before a

competent authority having jurisdiction over rates of

fare that such greater charge is justified ;”

that there were seventy-three franchises under Class “B,”

providing

“that the rate of fare for any distance over said road

or its branches, one way, shall not exceed five cents

for one passenger ;”

that there were five franchises under Class “C,” in which

no provision was made for any rate of fare; that there

were three franchises under Class “D,” providing

“that the rates of fare charged shall not exceed two

and one-half cents per mile for any distance, provided,

however, that no fare need be less than five cents;”

that there were two franchises under Class “E,” providing

“that the rate of fare for passengers on said railroad

shall never exceed ten cents, the said board of super-

visors reserving the right to establish at any time a

fare not exceeding ten cents and not less than five

cents ;”

that under Class “F” there was one franchise, providing

“that the rate of fare for passengers on said railroad

shall never exceed three cents per mile.”

Certain of these franchises had been granted by the

county of Los Angeles prior to the time the territory in-

volved had become annexed to the City [R. 388-396].

Seventy-nine franchises had been granted prior to 1914.

On November 17, 1926, the Railway Company filed with

the State Railroad Commission an application for an in-

veins

crease in its rates, as fixed in the various franchises above

mentioned, to a basic fare of seven cents cash, or four

single-fare tokens for twenty-five cents [R. 75-110]. The

Commission, after an exhaustive investigation thereon, on

March 26, 1928, issued its Opinion and Order No. 19,521,

denying the said application for rate increase [R. 165-

175].

The order, in part, provided [R. 168]:

“Tt is hereby ordered that the application of the Los

Angeles Railway Corporation for increase of its rates

of fare in the above-entitled proceeding be, and the

same is hereby, denied.”

The said rates of fare were the rates of, fare governed

by the franchises in question, and no change had ever been

made by the State Railroad Commission in the franchise

rates, although in May, 1921, the Commission had made a

permissive order permitting the company to charge six

cents, which never became effective.

The 1921 order is not pleaded as such a change by

appellee, plaintiff below, nor was it introduced in evidence

in the court below. The only reference to it in the record

is found in allegation IV of the amended complaint [R.

12]; in the concurring opinion of Commissioner Carr in

the 1928 decision and order (No. 19,521) [R. 169]; and

in the order dismissing the said application, dated October

y 25, 1926, setting aside and revoking, at the request of the

Railway Company, Decision No. 9029 [R. 349].

We shall discuss this point at length later under its

appropriate heading, so for that reason the pleading and

evidence are not set forth in full.

om

On June 22, 1928, the Railway Company filed with the

District Court of the United States, in and for the South-

ern District of California, Southern Division, its bill of

complaint against the Railroad Commission of California.

Said bill of complaint was amended on June 28, 1928, and

sets forth two alleged causes of action [R. 8-234]. By

its first cause of action the Company sought to have the

court declare confiscatory the five-cent rate of fare which

it was permitted to charge under the various franchises

granted to it [R. 8-53]; by its second cause of action the

Company sought to have declared arbitrary and void the

order of the Railroad Commission of California of 1928

(No. 19,521) refusing to increase the basic five-cent rate

of fare, on the ground that the Commission did not con-

sider all of the evidence before it and did not make its

order with due consideration of the evidence presented to

it [R. 53-74]. The City of Los Angeles, on motion duly

made, was permitted to intervene in said proceeding as a

party-defendant.

Thereafter the said three-judge court, constituted as

provided by United States Code, title 28, section 380,

issued its opinion [R. 534-549], and on October 1, 1928,8

issued its decree allowing permanent injunction [R. 559-

566]. The court found the basic five-cent fare fixed in the

franchises of plaintiff to be confiscatory, and held the

order of the Railroad Commission denying the rate in-

crease to be void. As a condition of the injunction the

court in its decree authorized plaintiff, from and after the

entry of the injunction and until final determination of the

cause by the United States Supreme Court, to charge and

collect not in excess of a basic fare of seven cents, or fou

single-fare tokens for twenty-five cents, all as prayed fo

eellaess

in the amended bill of complaint of plaintiff, and directed

that plaintiff issue to each passenger paying such fares a

refund ticket or coupon for the excess between the former

five-cent fare and the rate of fare paid by such passenger

[R. 565], pending final determination of the matter by this

court.

Specification of Assigned Errors to Be Urged.

Appellant City of Los Angeles urges on this appeal the

assignment of errors numbered I to XIV, inclusive [R.

569-572]. The said assignment of errors so specified are

as follows:

I.

The court erred in making the decree,

IL,

The court erred in granting the injunction.

Ill.

The court erred in making the decree and in over-

ruling the respective motions to dismiss interposed by

defendant Railroad Commission and _intervener-

defendant City of Los Angeles, for the reason that

the reliet asked in the amended bill of complaint herein

is beyond the power and jurisdiction of the said court

to grant. |

IV.

The court erred in making the decree and in holding

that the allegations of the first alleged cause of action

in said amended bill of complaint stated a cause of

action or raised any federal question over which it had

or has jurisdiction, for the reason that said alleged

cause of action attacks only the present effective rates

of fare in force upon plaintiff’s street railway system

and fixed in the franchises sold to plaintiff by the City,

and does not attack any order or act of the Railroad

—

ee

Commission fixing any fare or fares to be charged by

plaintiff.

V.

The court erred in making the decree and in holding

that the allegations of the second alleged cause of

action in said amended bill of complaint stated a cause

of action or raised any federal question over which it

had jurisdiction, for the reason that the said alleged

cause of action does not attack any order or aot of the

Railroad Commission changing or modifying in any

manner the rates of fare fixed and established in and

by the franchises sold to plaintiff by the City of Los

Angeles.

VI.

The court erred in making the decree and in fixing

and/or allowing the charge and collection by plaintiff

of rates of fare greater than and different from those

fixed and established in and by the franchise-contracts

entered into and existing between plaintiff and inter-

vener-defendant City of Los Angeles, and in failing

to hold that plaintiff was and is bound by all of the

terms and provisions of said franchises, including the

provisions for rates of fare, for the reason that said

court did not and does not now possess jurisdiction to

change or vary the said rates of fare so fixed and

established.

VII.

The court erred in making the decree and in finding

and/or holding that defendant Railroad Commission,

either in and by its Decision and Order No. 9029, or

otherwise, has ever acted to change the basic five-cent

fare in force upon plaintiff’s street railway system,

for the reason that the record herein discloses upon

its face that said decision and order never did and

never has become an effective decision and order of

said Commission, and was and is ineffectual for any

purpose whatsoever, and further for the reason that

=~

the record discloses upon its face that the Railroad

Commission has never made, issued or promulgated

any order, decision or rule changing the rates of fare

upon plaintiff’s street railway system.

VIII.

The court erred in making the decree and in failing

to hold that plaintiff entered into valid and binding

contracts with the City of Los Angeles when it pur-

chased its franchises and filed approved bonds for the

faithful performance of all terms thereof.

IX.

The court erred in granting the decree and in fail-

ing to hold that plaintiff is bound by the rate provi-

sions in each of its franchises purchased from the City

unless or until said provision should™be changed by

lawful and effective order of the Railroad Commis-

sion; and in failing to hold that plaintiff under and by

its said franchise-contracts limited itself to charging

a basic five-cent fare, subject to change only by the

police power of the state, as a part of its consideration

for the grant to it of the right to operate a street

railroad on the streets of said City.

X.

The court erred in making the decree and in finding

and holding that defendant Railroad Commission had

or has acted to change, alter or affect the rates fixed

in and by the franchise-contracts, or any of them,

entered into and existing between plaintiff and the

City of Los Angeles.

XI.

The court erred in making the decree and in finding

and holding that a failure and refusal by defendant

Railroad Commission to change the rates fixed in and

by the franchise-contracts entered into and existing

between plaintiff and the City, either by its Decision

and Order No. 19,521, or otherwise, is either a com-

plete or any exercise of that Commission’s power over

the rates specified in said franchises, for the reason

that such failure and refusal to change said rates did

not and could not operate to affect said rates, or any

of them, in any manner, or to give the said court

jurisdiction thereover.

stolen

XII,

The court erred in making the decree and in finding

and holding that the denial by defendant Railroad

Commission of plaintiff's application (No. 13,323)

for authority to increase its rates of fare constituted

such action or any action with regard to said rates as

to give to said court any jurisdiction or authority

over said rates.

XIII.

The court erred in making the decree and in finding

and holding that the denial by defendant Railroad

Commission of the application of plaintiff for in-

creased rates in the proceedings which resulted in the

prosecution of this cause “followed as it was and is

by the necessary effect of enforcing the rate, was an

exercise of jurisdiction and that a situation was cre-

ated wherein the power of the federal court to enjoin,

if confiscation is effected by the order, is ample,” for

the reason that no action was or has been taken by

defendant Railroad Commission, which would operate

to change or alter any of the rates fixed in and by the

franchise-contracts entered into and existing between

plaintiff and the City of Los Angeles,

S XIV.

The court erred in making the decree and in holding

that the federal court may exercise or force the exer-

cise of the police power of a state either to change the

terms of or to abrogate the franchises sold to plaintiff

by the City of Los Angeles, or otherwise.

—

oii

ARGUMENT.

The City relies on the following points in arguing that

the court below erred in its decree:

I. The franchises in question are contracts.

II. The City had power to enter into such contracts,

including the fixing of maximum charges.

III. It is immaterial that a rate for public service fixed

by valid contract between a municipal corporation and a

public service corporation may be confiscatory.

IV. The public utility can seek no relief from the

courts, unless it secures a change of the franchise rates by

order of the State Railroad Commission.

V. There was no change from the contract or fran-

chise rate to a statutory or legislative rate due to the orders

of the Railroad Commission, either under the 1921 or 1928

orders,

VI. The absence of California decisions upholding the

power of the City to contract with reference to rates is

immaterial.

I.

The Franchises in Question Are Contracts.

The franchises themselves exhibit an intention on the

part of the parties thereto, namely, the City and the pub-

lic utility company, to contract. Specimen franchises

were introduced in evidence [R. 397-436]. Typical is

Franchise Ordinance No. 2532 (N. S.) granted in 1894,

providing, in part, as follows [R. 397]:

“Provided, that in all cases where this franchise is

granted over streets now occupied by other lines of

_

street railway owned by persons or corporations,

whether named herein or not, that said W. D. Lara-

bee, and his assigns, shall have the right to operate

over any and all such tracks in accordance with and

limited only by the statutes of the state of California

applicable thereto; and in case the gauge of the tracks

of said other persons or corporations shall not con-

form to the gauge of the tracks of said W. D. Lara-

bee, or his assigns, then the said W. D. Larabee, or

his assigns, shall be permitted to lay a third rail over

the distance traversed by said two roads jointly.”

(Italics ours.)

—§—

“Section 3. That the rate of fare for any distance

along said road or its branches, one way, shall not

exceed 5 cents for one passenger, and shall transfer

at connecting points on the lines of said grantee or

his assigns or lines which said grantee or his assigns

may operate so as not to return passengers in the

general direction from which they came, and that

persons under eighteen years of age who attend the

public schools of said city, shall be required to pay

but half fare, provided said pupils shall purchase

their tickets in quantities of at least one dollar’s worth

at a time; such tickets to be available only between

the hours of 8 a. m. and 6 p. m., in actual passage

to and from school; and said grantee, or assigns,

shall sell such tickets whenever requested to do so

by a pupil who shall present a certificate from a

teacher approved by the Superintendent of Schools of

the City, that he or she is such pupil of said schools.

“And, further, that said grantee, or assigns, shall

carry policemen and firemen and letter carriers,

Mayor and Councilman, free on said cars when on

duty, subject at all times to the rules of the road.

“Provided, further, that said grantee, or assigns,

shall, on or before December 15th, of each year, pay

ae

to the City Tax and License Collector, the annual

license upon each car fixed by the existing ordinances

of said city.

7 a

“Section 4. The above rights and privileges are

granted upon the express condition that work upon

that portion known and described as the Kuhrts-

Street Line of said road and the line from Estrella

Avenue to the west city limits on Washington Street

shall be commenced within sixty days, and completed,

equipped and in operation as an electric road for its

full length within eight months from the date hereof.

The remaining portion of said railroad line shall be

fully equipped and completed as provided herein with-

in two years from the date of the approval of this

ordinance. Provided, further, that this franchise is

granted upon each and every condition herein set

forth, and a failure to comply with each or any of

said conditions shall work an immediate forfeiture of

all the rights herein granted.

“Section 5. The said grantee or assigns is hereby

required to file a written acceptance of the terms and

conditions hereof with the City Clerk of said City

within thirty days after the passage of this ordinance,

together with a bond of not less than ten thousand

dollars, for the faithful carrying out of the terms of

this franchise.” (Italics ours.)

Sections 22 and 23, Article XI, of the State Constitu-

tion of 1879 originally provided for the creation of the

Railroad Commission, but no powers were given it over

street railways in municipalities. These sections were

amended in 1911, and it was held that the powers of con-

trol over existing public utilities which were vested in any

city at the time of the adoption of the amendment were

still retained by such city and did not pass to the Railroad

Commission until the city, by an election, surrendered

these powers to the Commission. (Title Guar. etc. Co. v.

R. R. Comm., 168 Cal. 295, 142 Pac. 878.)

So, also, in 1903 (Stats. of 1903, p. 172) section 501

of the Civil Code had been enacted, reading as follows:

“The rates of fare on the cars must not exceed ten

cents for one fare for any distance under three miles,

and in municipal corporations of the first class must

not exceed five cents for each passenger per trip of

any distance in one direction, either going or coming,

along any part of the whole length of the road or its

connections. The cars must be of the most approved

construction for the comfort and convenience of

passengers, and provided with brakes to stop the

same, when required. A violation of the provisions

of this section subjects the corporation to a fine of

one hundred dollars for each offense.”

On November 3, 1914, section 23 of Article XII of

the State Constitution was further amended and regula-

tion over the rates of public utilities was expressly re-

served to the Railroad Commission, and municipalities

were expressly divested of all power of regulation over

rates.

The section, in part, now reads as follows (Art. XII,

Sec. 23, as amended Nov. 3, 1914):

“* * * From and after the passage by the

legislature of laws conferring powers upon the Rail-

road Commission respecting public utilities, all

powers respecting such public utilities vested in

boards of supervisors, or municipal councils, or other

governing bodies of the several counties, cities and

counties, cities and towns, in this state, or in any

commission created by law and existing at the time

—

of the passage of such laws, shall cease so far as

such powers shall conflict with the powers so con-

ferred upon the Railroad Commission; provided,

however, that this section shall not affect such

powers of control over public utilities as relate to

the making and enforcement of local, police, sanitary

and other regulations, other than the fixing of rates,

vested in any city and county or incorporated city or

town as, at an election to be held pursuant to law, a

majority of the qualified electors of such city and

county, or incorporated city or town, voting thereon,

shall vote to retain, and until such election such

powers shall continue unimpaired; but if the vote so

taken shall not favor the continuation of such powers

they shall thereafter vest in the railroad commission

as provided by law; and provided, €urther, that

where any such city and county, or incorporated city

or town, shall have elected to continue any of its

powers to make and enforce such local, police, sani-

tary and other regulations, other than the fixing of

rates, it may, by vote of a majority of its qualified

electors voting thereon, thereafter surrender such

powers to the Railroad Commission in the manner

prescribed by the legislature; and provided, further,

that this section shall not affect the right of any

city and county, or incorporated city or town, to

grant franchises for public utilities upon the terms

and conditions and in the manner prescribed by

hi 2 ee

i

Prior to the creation of the Railroad Commission,

under the State Constitution the City of Los Angeles had

been granted a charter by the state in 1850. (Stats.

1850, p. 155.) In 1889 a new charter was adopted

(Stats. 1889, p. 455), which was amended in 1905

(Stats. 1905, p. 980), adding a new subdivision to sec-

—

tion 2 of Article I, numbered 25, which read as follows

(at p. 994):

“That Section 2 of the charter be amended by

adding a subdivision to be numbered (25) and to

read as follows:

~ e

“€20). No franchise, right or privilege in, on,

through, across, under or over any street, avenue,

alley, bridge, viaduct or other public place, and no

other franchise whatever granted by the city to any

corporation, association or individual, shall be

granted except by an ordinance passed by vote of

two-thirds (2/3) of the whole council, nor for a

longer period than twenty-one years. Such grant

and any contract in pursuance thereof shall provide

that at the option of the city, declared not more than

three (3) years nor less than six months before the

termination of such grant, the plant and property,

if any, belonging to or used by the grantee, or his or

its successors in interest, in the streets, avenues and

other public places shall, at the termination of said

grant, upon the payment of a fair valuation thereof,

be and become the property of the city; but the

grantee shall be entitled to no payment because of

any valuation derived from the franchise. Provided,

however, that such option shall not be exercised un-

less at the time of exercising the same the city shall

be authorized and empowered to acquire and operate

such plant and property. Every grant shall specify

the mode of determining any valuation therein pro-

vided for and the time and mode of payment, and

shall make adequate provision by way of forfeiture

of the grant or otherwise to secure efficiency of pub-

lic service at reasonable rates and the maintenance

of the property in good order throughout the term

of the grant.”

i

atic.

In 1911 the 1905 amendment above quoted was further

amended and the city was given express power (Stats.

1911, pp. 2051, 2063):

“to fix and determine the rates or compensation to be

collected by any person, firm or corporation, for

water, gas; electric current, refrigeration, heat, light,

power, telephones, telephone service or connections,

or the conveyance of passengers or freight, by means

of street railway cars, hacks, cabs, or other cars or

vehicles for hire, or for the products of, or service

by, any other public utility operated or conducted

within the city limits; and to prescribe the character

and quality of any public utility service.

“To regulate, subject to the provisions of the con-

stitution of the state of California, the construction

and operation of railroads, interurban railroads,

street railways, or other means of transportation,

conduits, waterworks, and works or plants for the

production, transmission or distribution of gas, elec-

tricity, heat, refrigeration or power, and the works

or plants of any other public service utility.”

The franchise ordinances in question enacted by the

City of Los Angeles provided, among other matters, that

the grantee may operate in accordance with and limited

only by the statutes of the State of California applicable

thereto; that the rate of fare for any distance shall not

exceed five cents for one passenger; that the franchise is

granted upon each and every condition set forth in the

instrument; that a failure to comply with each and any

of the conditions of the franchise would work an imme-

diate forfeiture of all the rights granted; and that said

grantee is required to file a written acceptance of the terms

and conditions of the said franchise with the City Clerk

ai

of said city, together with a faithful performance bond

of a specified amount [R. 397].

By the Franchise Act of 1893 (Stats. 1893, p. 288) a

definite plan for the sale of franchises to construct or

operate railroads upon the public streets of a municipality

was set forth by the legislature. That act read as fol-

lows:

“Section 1. Every franchise or privilege to erect

or lay telegraph or telephone wires, to construct or

operate railroads along or upon any public street or

highway, or to exercise any other privileges what-

ever hereafter proposed to be granted by the Board

of Supervisors, Common Council, or other govern-

ing body of any county, city and county, city, town

or district within this state, shall be granted upon

the conditions in this Act provided, and not other-

wise. The fact that an application for such franchise

or privilege has been made to such Board of Super-

visors, Common Council, or other governing or legis-

lative body, together with a statement that it is

proposed to grant the same, must first be advertised

in one or more daily newspapers of the county, city

and county, city, town, or district wherein the said

franchise or privilege is to be exercised. Such ad-

vertisement must continue every day for at least ten

days, and must commence at least thirty days before

any further action of the Board of Supervisors,

Common Council, or other governing or legislative

body. The advertisement must state the character

of the franchise or privilege proposed to be granted,

the term of its continuance, and, if a street railroad,

the route to be traversed, and the day on which

tenders will be received for the same. On the day

so stated, the Board, or other governing or legisla-

tive body herein mentioned, must meet in open ses-

nm

—~—

sion and read the tenders. The franchise or privi-

leges must then be awarded to the highest bidder;

provided, however, that nothing in this section shall

affect a special privilege granted for a shorter term

than two years.”

Prior to that time no definite scheme for the sale of

franchises to the highest bidder had been provided by the

Legislature.

In 1901 a new franchise act’ was enacted (Stats. 1901,

p. 265), which dealt with the same subject. Thereafter,

in 1905 (Stats. 1905, p. 777), an entirely new act was

adopted, known as the Broughton Franchise Act, which

repealed the former acts. This later act was amended in

1909 (Stats. 1909, p. 125) and in 1915 @Stats. 1915, p.

1300). By the 1915 amendment it was expressly pro-

vided as follows:

“Every franchise or privilege to erect or lay tele-

graph or telephone wires, to construct or operate

street or interurban railroads upon any public street

or highway, to lay gas pipes for the purpose of carry-

ing gas for light, heat, or power, to erect poles or

wires for transmitting electricity for light, heat or

power, along or upon any public street or highway,

or to exercise any other privilege whatever here-

after proposed to be granted by boards of super-

visors, boards of trustees or common councils, or

other governing or legislative bodies of any county,

city and county, city or town within this state, except

steam railroads and except telegraph or telephone

lines doing an interstate business, and renewals of

franchises for piers, chutes or wharves, shall be

granted upon the conditions in this act provided, and

not otherwise. The grantor may, however, in such

franchise impose such other and additional terms

~?i-—

and conditions not in conflict herewith, whether gov-

ernmental or contractual in character, as in the judg-

ment of the legislative body thereof are to the public

interests.”

There is no particular need of going into these various

changes—suffice it to say that since 1893 the city in

granting franchises has been, by legislative fiat, required

to sell the franchises granted by it for the use of its

streets. Ever since that time such franchises have been

sold. It will be seen that under the act the method by

which a sale is made is comparatively simple. An ap-

plication is made for a franchise. The city advertises

that it will make a sale of the franchise for which ap-

plication is made. In the notice of sale is set forth all

the terms and conditions upon which the franchise will

be sold and the rights granted. The franchise is awarded

to the highest bidder and an ordinance is then passed

giving the rights to the purchaser, which ordinance con-

tains all of the terms and conditions upon which the

rights sold may be enjoyed upon acceptance by the

grantee.

With these provisions of the constitution and laws of

the State of California in effect at the time the fran-

chises were granted, together with the charter provisions

of the City of Los Angeles, we maintain that under the

following authorities the franchises were contracts:

It was said by this court in St. Cloud Pub. Serv. Co.

v. City of St. Cloud, 265 U. S. 352, 68 L. Ed. 1050, that:

“Provisions in ordinances granting franchises to

street railway companies that the rate of fare shall

not be more than five cents, or that the grantee shall

—22—

not charge a higher fare, are contractual. (Detroit

v. Detroit Citizens St. R. R. Co., 184 U. S. 368;

Cleveland v. Cleveland City R. R. Co., 194 U. §S,

517; Cleveland v. Cleveland Elec. R. R. Co., 201

U. S. 529; Ga. R. & Power Co. v. Decatur, 262

U. S. 434.)”

In Madera Water Works v. City of Madera, 185 Fed.

281, the California law was construed and it was therein

stated :

“Complainant’s franchise to occupy and use the

streets of the city of Madera must necessarily rest

in a grant from the state. * * * All efforts,

therefore, to pitch the controversy on any other than

a contractual plane must be unavailing.”

In City of San Diego v. Kerckhoff, 49 Cal. App. 473,

the city had brought an action to recover on a bond given

to insure the performance of the terms of a franchise

granted by the city for the construction of a railroad.

The court said (at p. 481):

“The franchise of a street railroad finds its origin

in the action of the municipality. It is a contract

between the city and the grantee.”

In City of Albany v. U. S. Fid. & Guar. Co., 38 Cal.

App. 466, the city brought action to recover upon a bond

for failure to construct a railroad in accordance with the

terms of the franchise. The court said:

“At the instant of the grant of the franchise the

franchise became an irrevocable contract. * * *”

In St. Helena v. San Francisco, etc. Ry., 24 Cal. App.

71, it was said:

—23..

! “It is not disputed that said franchise constitutes

a contract that is binding upon both parties, * * *”

A petition for hearing was filed in the Supreme Court,

wherein it was denied, the Supreme Court stating:

“Such power (the police power) must be founded

upon the contract between the city and company

whereby the franchise is granted, or upon some

valid contract obligation of the company, * * *

It (the paving of the street) is a constituent part of

the contract granting the franchise, though not ex-

pressed therein in terms. The company is therefore

bound by contract to pave the street in accordance

with the city ordinance. * * *”

In Los Angeles Ry. Co. v. City of Los Angeles, 152

Cal. 242, the question of the forfeiture of a franchise

granted to plaintiff by the City was involved. An ac-

tion was brought by the Railway Company to enjoin the

defendant City from interfering with the railroad in ex-

ercising its alleged franchise rights, after it had failed

to construct a part of its road in accordance with the

terms of this franchise contract, The court stated:

“It is argued in support of this view that nothing

is involved in this controversy beyond the respective

rights of the plaintiff and defendant growing out of

and dependent upon the ordinance granting the

franchise which it is contended embraces all the

terms of the contract. * * * We agree with the ap-

pellant that the rights of the Parties are measured by the

terms of their contract. * * *”

In fact, it is not seriously disputed that the franchises

are contracts, and the court below in effect admitted that

they were in its statement— .

, “

“that even upon the assumption that the city had

power to fix the utility rate by contract, and that the

rate provisions contained in the franchise granted to

plaintiff did constitute contracts, nevertheless the

rates specified in the provisions of the franchise have

been changed by the exercise of the police power of

the state.” [R.542.] (Italics ours.)

—24—

II.

The City Had Power to Enter Into Such Contracts,

Including the Fixing of Maximum Charges.

The court below, on this point, stated:

“The city would avoid the applicability of these

general principles by contending that, although ad-

mitting the franchise rates are subjett to change by

the State Railroad Commission, nevertheless, the |

franchises are contracts between the parties, and that, |

therefore, no substantial federal question is presented,

and the federal court is without jurisdiction to grant

plaintiff the injunctive relief it asks. Briefly an-

swering this contention, we think it may well be

doubted whether the state of California ever dele-

gated power to the city to contract with a public

utility on the subject of rates so as to restrict future

regulations.” [R. 540.]

The principle may be stated that when a municipality,

under and by reason of the state constitution, statutes

and its charter, has clearly been granted the power to

enter into a contract with a public utility as to rates,

which contract is binding upon the parties thereto, and

where the municipality has properly exercised that power,

the contract is binding upon the parties until and when

abrogated by the state, and until such contract is ab-

rogated no question of confiscation drises. In such cases

—

the federal courts will not enjoin the enforcement of

such contract rates at the request of the utility.

Thus, in Columbus Ry. Co. v. City of Columbus, 294

U. S. 399, 63 L. Ed. 669, the court said:

“The authority under which the city acted came

from the state and was granted by proper statutes

passed for that purpose. The contracts were made

between the city and the company and became mu-

tually binding for the period named in the ordi-

nances.

“By these contracts, obligatory alike upon the city

and the company, the city granted the right to use

the streets and the company bound itself to furnish

the contemplated service at the rates of fare fixed in

the ordinances.”

In City of Opelika v. Opelika Sewer Co., 265 U. S. 215,

68 L. Ed. 985, it was held that whether or not a contract

between a municipal corporation and a public service cor-

poration is valid, under the laws of the state where they

are located, is a question for the state courts to decide.

That where the constitution of the state forbids grants

of special privileges or immunities, the Legislature can-

not make such a grant indirectly by. giving power to a

City to make it; but the Legislature, without constitu-

tional power to make an irrevocable grant of privileges

to a public service corporation, may yet confer power

upon a municipal corporation to enter into a contract

conferring such privileges so that the municipality can-

not of its own motion recede from the grant.

In that case this court stated that the ordinance in

question

—

“purported to be a contract, and that if it was a

valid one, it bound the Sewer Company not to charge

more than the prescribed rates. Columbus R. P. &

Light Co. v. Columbus, 249 U. S. 399, 63 L. Ed.

669.”

—26—

Section 2 of the Constitution of the state of Alabama,

therein construed, provided that no law

“making any irrevocable or exclusive grants of spe-

cial privileges or immunities shall be passed by the

legislature and (that) every grant of a franchise

privilege or immunity shall forever remain subject

to revocation, alteration, or amendment.”

That is a provision similar to the California consti-

tution, which provides (Art. I, Sec. 21):*

“No special privileges or immunities shall ever be

granted which may not be altered, revoked or re-

pealed by the legislature.”

In construing that provision of the Alabama constitu-

tion, this court said:

“We see no reason to doubt that the legislature,

without impairing its power to revoke, may give a

city power to make a contract from which the city

of its own motion may not recede. * * * The

Alabama decisions construe the state constitution

and such charters (of municipalities) to allow a con-

tract to be made, subject to being revoked, when-

ever the legislature of the state may think fit.”

It was thereupon held that the ordinance prohibiting

the Sewer Company from charging in excess of maximum

rates therein contained was valid, on the theory

“that the city had the power to make the contract

upon which it relies.”

—

It is noteworthy in the Opelika case that the charter

provisions referred to merely went to the extent that the

City was given power

ee Be

“to maintain the health and cleanliness of the city,

and to this end to adopt and maintain an efficient

system of sewerage (Sec. 11) ;”

and

“to establish and build drains, sewers * * * and

to regulate the same.”

Construing these sections this court said:

“We shall assume that the city had power to make

an arrangement with a company to do the work.”

And even though the court stated that the charter pro-

visions

“do not go far enough to empower it (the city) to

regulate prices charged by another, and, in short,

we find no grant of that character elsewhere,”

nevertheless,

“as we have said, the Alabama decisions sustain the

conclusion that the city had the power to make the

contract upon which it relies,”

and, therefore, the ordinance was valid and enforce-

able as to the rate provision.

So, also, in St. Cloud Pub. Serv. Co. v. City of St.

Cloud, 265 U. S. 352, 68 L. Ed. 1050, this court stated

that a state may authorize a municipal corporation to

establish, by an inviolable contract, the rates to be charged

by a public service corporation for a definite term, not

grossly unreasonable in time, and the effect of such a

contract is to suspend, during its life, the governmental

—23—

power of fixing and regulating rates; that charter au-

thority to a municipal corporation to provide for, con-

trol and regulate the erection, maintenance and opera-

tion of gas works and regulate and prescribe the fees

and rates to be charged for gas, includes power to con-

tract for the rates to be charged, where the state courts

have so construed it; that if a municipal corporation has

power to contract for rates for public service and also to

prescribe rates from time to time, the exercise of the

power to contract suspends the power to regulate; that

a contract fixing rates is established by acceptance of a

municipal ordinance granting authority to construct a

plant for producing gas with authority to charge a speci-

fied price for gas furnished. >

A careful study of this case indicates the only limita-

tion upon the doctrines enunciated is that the authority

of the municipality to make a valid contract must clearly

and unmistakably appear. However, the charter powers

of the City of St. Cloud appear to have been no greater

than the charter grant of 1905 to the City of Los Angeles.

The material sections of the charter referred to in the

decision provided that the City

“shall be capable of contracting and being contracted

with, and shall have all the powers possessed by

municipal corporations at common law;”

that

“the common council, in addition to all powers here-

in specifically mentioned, shall have full power and

authority to make * * * all such ordinances for

the general welfare ‘of the city and the inhabitants

thereof, as they shall deem expedient;”

—29_—

that

“the common council shall have full power, by or-

dinance, * * * to provide for and control the

erection and operation of * * * .works * * *

and to grant the right to erect, maintain and operate

such works * * * provided * * * that the

common council shall have authority to regulate and

prescribe the fees and rates and charges of any and

all companies hereinbefore mentioned.”

Contract this phrase “grant the right” with the Los

Angeles Charter provision, “such grant and any contract

in pursuance thereof.” (1905 Amend. to City Charter,

supra, p. 17.)

The court stated, in connection with these charter re-

quirements :

“In construing and giving effect to these provisions

of the charter, we look to the decisions of the Su-

preme Court of the state. * * * In the light of

these decisions of the Supreme Court of the state of

Minnesota, we think it is clear that the city had au-

thority, in 1905, under its charter and the laws of

the state, to enter by ordinance into a contract

* * * and we do not think that this contractual

power was limited by the proviso that the council

should have the right to ‘regulate and prescribe’ the

rates and charges of the companies to which it

might grant the right of constructing such works.

It ts true that, standing alone, this proviso, in the

absence of any state decision to the contrary, would,

under the construction given similar language in

Home Tel. Co. v. Los Angeles, 211 U. S. 274, 53

L. Ed. 183, be regarded as conferring authority

merely to exercise the governmental power of regu-

lating rates and not authority to enter into a cona

tract. In that case, however, it was pointed out

that there was no other provision of the charter au-

thorizing the city to contract as to rates. And in

the present case, as the other provisions of the

charter give the city authority so to contract, we

must regard the proviso as merely an alternative

provision; that is to say, we think that the city

might either contract as to the rates as an incident

to its power of granting the right to construct and

operate the public utility, or, if it did not exercise

this power to contract, might thereafter ‘regulate and

prescribe’ the rates in the exercise of the govern-

mental authority conferred by the proviso. One

power, however, is not destructive of the other. And

where a municipality has both the power to contract

as to rates and also the power to prescribe rates from

time to time, if it exercises the poWer to contract,

its power to regulate the rates during the period of

the contract is thereby suspended and the contract

is binding. Paducah v. Paducah R. Co., 261 VU. S.

272, 67 L. Ed. 650, 43 Sup. Ct. Rep. 335.” (Italics

ours. )

In the California charter amendment of 1905 it will

be noted that the City of Los Angeles was given power

to grant franchises, provided that

“every grant shall * * * make adequate pro-

vision by way of forfeiture * * * to secure ef-

ficiency of public service at reasonable rates * * *

throughout the term of the grant.”

We do not see how such grants, under the 1905 amend-

ment, could be made effective, or construed, other than as

a grant of the power to contract, and any other construc-

tion would render the charter provision abortive. Under

no construction could this provision of the 1905 amend-

ment be called merely regulatory of rates.

in

In 1891 the Legislature enacted a statute, which, in

our opinion, gave the power to contract with reference

to rates for street railways, such statute reading as fol-

lows (Stats. 1891, p. 12—amending Sec. 497 of the Civil

Code) :

“Authority to lay railroad tracks through the

streets and public highways of any incorporated city,

city and county, or town, may be obtained for a

term of years not exceeding fifty, from the Trus-

tees, Council, or other body to whom is intrusted the

government of the city, city and county, or town,

under such restrictions and limitations, and upon

such terms and payment of license tax, as the city,

city and county, or town authority may provide. In

no case must permission be granted to propel cars

upon such tracks otherwise than by electricity, horses,

mules, or by wire ropes running under the streets

and moved by stationary engines, unless for special

reasons in this title hereinafter mentioned; provided,

however, that such board or body in granting the

right, or at any time after the same is granted, to

use electricity or any other of said modes, shall have

power to impose such terms, restrictions, and limita-

tions as to the use of streets and the construction

and mode of operating such electric and other roads

as may, by such board or body, be deemed for the

public safety or welfare.”

The Statute of 1891 above quoted did expressly give

to cities power to grant franchises

“under such restrictions and limitations and upon

such terms * * * ag the city * * * may pro-

wee? 2a

and in the granting of such franchises to

“impose such terms, restrictions and limitations as

to the use of streets * * *, and * * * mode pf

~~

—82—

operating such * * * roads as may * * * be

deemed for the public safety or welfare.”

As confirming this position, that the Statute of 1891

did constitute a grant of power to contract with refer-

ence to rates, the Legislature March 21, 1872, had en-

acted a statute in the nature of a limitation of the

power of municipalities to contract with reference to

rates, in the following language, to-wit (Civil Code, Sec.

501):

“The rates of fare on the cars must not exceed ten

cents for one fare, for any distance under three

miles. The cars must be of the most approved con-

struction for comfort and convenience of passengers,

and provided with brakes to stop thetsame, when re-

quired. The rate of speed must not be greater than

eight miles per hour. A violation of the provisions

of this section subjects the corporation to a fine or

one hundred dollars for each offense.”

However, section 501 of the Civil Code has been

amended from time to time (from 1872 to 1903), and

is still in force as amended in 1903, reading as follows:

“Rates of fare on street-cars. Construction of

cars. Penalty. The rates of fare on the cars must

not exceed ten cents for one fare for any distance

under three miles, and in municipal corporations of

the first class must not exceed five cents for each

passenger per trip of any distance in one direction

either going or coming, along any part of the whole

length of the road or its connections. The cars must

be of the most approved construction for the com-

fort and convenience of passengers, and provided

with brakes to stop the same, when required: A

violation of the provisions of this section subjects the

aii.

corporation to a fine of one hundred dollars for

each offense.”

Furthermore, it will be noted that until the creation of

the Railroad Commission there was an entire absence

from the laws of the state and the charter provisions

of the City of Los Angeles of any power to regulate

or change rates. In other words, this entire absence of

power is confirmatory of the express power given to the

City to contract. This absence of power to regulate was

commented upon in the case of Water Light & Power Co.

v. City of Hot Springs, 274 Fed. 827. construing the

law of South Dakota relative to franchises granted by

the City fixing maximum rates for water and electricity.

It was therein said:

“In the case at bar these franchises do fix a

maximum rate, and are contracts, because the fran-

chises themselves do not reserve to the city future

control of rates to be charged for Service, nor do the

statutes or constitution of the state of South Dakota

under which the defendant acted in granting the

franchises reserve to the city future control over

such rates, nor is there any power in the statutes

as they then existed given to the city to change these

rates. The relation between the plainti* and de-

fendant was and is therefore contractual and such a

contract cannot be impaired by an amendment of the

laws or the constitution.” (Italics ours. )

The same case points out the distinction between the

two classes of power residing in a municipality—one

purely governmental in its nature and the other partaking

of administrative or business nature. Commenting on

this distinction the court said:

7

—84—

“To the first of those belongs the police power

and in the exercise of such police power a city coun-

cil can in no manner bind its successors; but a city

has full power when authorized either by the con-

stitution of the state or by legislative enactment to

contract for the rendering of public service by indi-

viduals or private corporations, and in such contract

fix the rates to be charged for such service. The

granting of a franchise fixing a maximum rate is

a contract and when the franchise itself does not

reserve to the city future control of the rates to be

charged for service or the constitution or statute

under which the city acted in granting the franchise

does not reserve to such city future control over

such rates, including the power to change same,

such franchise becomes a binding contract, no more

subject to impairment than would be the contract

of individuals.”

We think this decision of the District Court is fully

in accord with the doctrine laid down by this court in

cases construing franchises granted by a city fixing maxi-

mum rates for service.

There is a line of cases, to be sure, exemplified by:

Denney v. Pac. Telephone & Tel. Co. (1928),

276 U. S. 97, 72 L. Ed. 483;

San Antonio Traction Co. v. San Antonio Pub.

Serv. Co., 255 U. S. 547, 65 L. Ed. 777;

Miss. R. R. Comm. v. Mobile & Ohio R. R. Co.,

244 U. S. 388, 61 L. Ed. 1216;

Augusta-Aiken Ry. & Elec. Corp. v. R. R. Comm.,

281 Fed. 977;

Smith v. Ill. Bell’ Tel. Co., 270 U. S. 587, 70 L.

Ed. 747;

Muscatine Lighting Co. v. City of Muscatine, 255

U. S. 539, 65 L. Ed. 764;

(and cases therein cited)

ti

which hold, in effect, that municipalities have no power

to enter into contracts fixing maximum charges for pub-

lie service, but an analysis of these cases will show one

of three things: either (1) that under the local law of

the state the particular city had no power to enter into

such contracts; or (2) that the court was not construing

the franchise rate but was construing what had always

been a statutory rate; or (3) what had originally been

a contract rate had been changed to a statutory rate.

This is clearly indicated in the Denney case, where the

rate involved had been fixed by the Postmaster General

in 1919 when the utility was under federal control, and

the franchise rate had been abrogated. Later, in 1923,

the Department of Public Works of the state of Washing-

ton, pursuant to statutory authority, approved as just

and reasonable the rates fixed by the Postmaster General

in federal control in 1919, which rates were of a higher

level than those provided in the contracts.

So, also, in the San Antonio case this court stated that

the powers of the city to contract cannot be implied.

Therefore, in effect, there was no contract rate.

In the Mississippi R. R. Comm. case the court dealt

with six direct orders of the Commission directing pas-

senger trains to be restored to service. Their orders were,

of course, not contractual, but statutory.

In the Augusta-Aiken case the record “disclosed no

contractual relations between the company and the state.”

In the Smith case the court again was dealing with

rates fixed by the State Commerce Commission.

In the Muscatine case this court particularly empha-

sized the distinction in saying:

—~36—

“It follows that as the rates here involved are

conceded to be confiscatory, they cannot be enforced,

unless they are secured by a contract obligation,”

(Italics ours. )

These cases are all illustrative of the distinction which

we think is most plain.

It was also argued in the court below that Article I,

Section 21 of the State Constitution, providing that

“No special privileges or immunities shall ever be

granted which may not be altered, revoked or repealed

by the legislature * * *”

prohibits the city from granting franchise contracts with

limitations upon maximum rates. In ghort, that such

franchises cannot be valid contracts because the city had

no power under the constitutional prohibition to bind

itself. The authorities relied upon were

City of San Antonio, supra; and

City of Denver v. Stenger, 277 Fed. 865.

We think, however, that the distinction is plain that

the power of regulation could always be exercised by

the state, but until exercised, as we shall hereinafter show

in our argument under the next heading, the franchise

maximum charge was binding upon the utility. In the

cases relied upon contra the court was not discussing a

contract or franchise rate, as it had held that the munici-

pality had no power under the laws of the state to con-

tract. In fact, this point was directly passed upon by

this court in Opelika v. Opelika Sewer Co., 265 U. S.

215, where the contract was sustained as binding between

the parties, even though subject to revocation or altera-

tion by the state. This court said (at p. 218):

—37—

“But we see no reason to doubt that the legisla-

ture, without impairing its power to revoke, may

give a city power to make a contract, from which

the city, of its own motion, may not recede. The

city has not attempted to recede from it.”

In concluding our argument on this point, we maintain

that the City had express power, and now possesses such

power, to enter into franchise contracts, subject to the

paramount power of the state to regulate rates therein,

pursuant to the following laws of the state:

1.

2.

3.

By Section 497 of the Civil Code, enacted in

1891 (Stats. 1891, p. 12);

By the Franchise Act of 1893 (Stats. 1893, p.

288) ;

By the Broughton Franchise Act of 1901

(Stats. 1901, p. 265);

By the Franchise Act of 1905 (Stats. 1905,

p. 777), as amended in 1909 and 1915 (Stats.

1909, p. 125; Stats. 1915, p. 1300);

By the Charter of 1889, as amended in 1905

(Stats. 1905, p. 980) ;

By the further amendment of the same section

in 1911 (Stats. 1911, pp. 2051-2063) ;

By the Constitutional Amendment of 1914

(Art. XII, Sec. 23), which merely prohibits

the “fixing of rates” by a city, but still permits

the city “to grant franchises for public utilities

upon the terms and conditions and in the

manner prescribed by law.”

-—38—

ITI.

It Is Immaterial That a Rate for Public Service Fixed

by Valid Contract Between a Municipal Corpora-

tion and a Public Service Corporation May Be

Confiscatory.

This proposition is so well established by the decisions

of this court that only the briefest citation of authority

is necessary.

It was said in St. Cloud Pub. Serv. Co. v. St. Cloud,

265 U. S. 352, 68 L. Ed. 1050, that

“Where a public service corporation and a munici-

pality have power to contract as to rates and exert

that power by fixing the rates to govern during a

particular time, the enforcement of such rates is

controlled by the obligation resulting from the con-

tract, and the question whether they are confiscatory

is immaterial. So. Iowa Elec. Co. v. Chariton, 255

U. S. 539, 65 L. Ed. 764, and cases there cited;

Paducah v. Paducah R. Co., 261 U. S. 267, 67 L. Ed.

647; Ga. R. & Power Co. v. Decatur, 262 U. S. 432,

67 L. Ed. 1065.”

To the same effect is Columbus Ry. P. & L. Co. v.

City of Columbus, 249 U. S. 399, wherein it was said

that ordinances passed by the city of Columbus under

authority of certain laws of Ohio and accepted by street

railway companies constituted binding contracts to fur-

nish street railway service for twenty-five years, at speci-

fied rates, in return for the use of the streets, and were

not permissive franchises which the grantees might sur-

render when they ceased to be unremunerative.

In Cleveland v. Cleveland City Ry. Co., 194 U. S. 517,

it was said:

“In reason, the conclusion that contracts were

engendered would seem to result from the fact that

the provisions as to rates of fare were fixed in ordi-

nances for a stated time and no reservation was made

of a right to alter; that by those ordinances existing

rights of the corporations were surrendered, benefits

were conferred upon the public and obligations were

imposed upon the corporations to continue those

benefits during the stipulated time. When, in addi-

tion, we consider the specific reference to limitations

of time which the ordinances contained, and the

fact that a written acceptance by the corporations

of the ordinances was required, we can see no escape

from the conclusion that the ordinances were intended

| to be agreements binding upon both parties definitely

fixing the rates of fare which might be thereafter

charged.”

To the same effect are Detroit v. Detroit etc. Ry. Co.,

184 U. S. 368, and Henderson Water Co. v. Corp. Comm.,

269 U. S. 278, 70 L. Ed. 273.

oe

IV.

The Public Utility Can Seek No Relief From the

Courts Unless It Secures a Change of the Fran-

chise Rates by Order of the State Railroad Com-

mission.

As we have pointed out, the State Railroad Commission

refused to grant any change of rates to the Company

in its instant application (Order No. 19;521). It is true

that the Railroad Commission, on May 31, 1921, issued

an intermediate, permissive order authorizing a basic six-

cent rate, but that order never became effective and was

never acted upon by the parties. The final order in said

matter was one of dismissal, granted at the request of

‘the Company, dismissing the entire proceeding and revok-

ing the intermediate, ineffective order. [R. 349-350.]

Conceding that after the constitutional amendment of

1914 the State Railroad Commission would have the

power to change the franchise contract rates, nevertheless,

it has been held by this court that where no action is

taken by the State the contract rates remain in full force

and effect.

Thus, it was said in Henderson Water Co. v. Corpora-

tion Commission, supra (269 U. S. 278):

“The present case differs from the cases cited,

in that when the water company applied to the cor-

poration commission for an order increasing rates,

it was bound by the terms of a céntract with the

city contained in its franchise to furnish water at

a low schedule of rates fixed therein. It was not

entitled to any judicial relief from this situation,

however inadequate the rates. Columbus R. L. &

P. Co. v. Columbus, 249 U. S. 399, 63 L. Ed. 699;

St. Cloud Pub. Serv. Co. v. St. Cloud, 265 U. S.

352, 68 L. Ed. 1050: Only by securing the waiver

of the franchise rates by order of the corporation

commission, speaking for the state, did the water

company have any standing to ask for a fixing of

rates in excess of the franchise rates. Trenton v.

N. J., 262 U. S. 182, 67 L. Ed. 939.” (Italics ours.)

So, also, in Milwaukee Elec. Ry. v. Wisconsin R. R.

Comm., 238 U.S. 174, this court quoted with approval

from Manitowoc v. Manitowoc & N. T. Co., 145 Wis. 13,

to the following effect :

““*No specific authority having been conferred on

the city to enter into the contract in question, the

right of the state to interfere whenever the public

re

weal demanded was not abrogated. The contract

remained valid between the parties to it until such

time as the state saw fit to exercise its paramount

authority, and no longer. To this extent, and to

this extent only, is the contract before us a valid

subsisting obligation. It would be unreasonable to

hold that by enacting section 1862, Stats. (1898),

or section 1863, Stats. (Supp. 1906, Laws of 1901,

Ch. 425), the state intended to surrender its govern-

mental power of fixing rates. That power was only

suspended until such time as the state saw fit to

act.’”” (Italics ours. )

In Lenawee County Gas & E. Co. v. City of Adrian,

209 Mich. 52, 176 N. W. 590, it was said that in the

absence of the exercise by the state of its legislative

power to fix rates, an ordinance of a city in whose streets

a gas company lays its pipes, fixing rates and accepted

by the company, constitutes a binding contract, and that

such a contract is not subject to control of the State

Utilities Commission.

So, also, in Southern Utilities Co. v. City of Palatka,

268 U. S. 232, 69 L. Ed. 930, this court said:

“The supreme court (state of Florida) held that

the city had power to grant the franchise and to

make the contract, and that it had no power, of its

- OWN motion, to withdraw, but it concedes the unfet-

tered power of the legislature to regulate the rates.

On that ground the defendant contends that there

is a lack of mutuality and therefore that it is free

and cannot be held to rates that, in the absence of

contract, it would be unconstitutional to impose.

The argument cannot prevail. Without considering

whether an agreement by the company in considera-

tion of the grant of the franchise might not bind

the company in some cases, even if it left the city

free, it is perfectly plain that the fact that the con-

tract might be overruled by a higher power does not

destroy its binding effect between the parties when

it is left undisturbed. Ga. R. & Power Co. v. Deca-

tur, 262 U. S. 432, 67 L. Ed. 1065; Opelika v.

” Opelika Sewer Co., 265 U. S. 215, 68 L. Ed. 985.”

In Pacific Telephone & Tel. Co. v. Whitcomb, 12 Fed.

(2d) 279, it was said:

“Tt cannot be doubted that where a franchise con-

tract is entered into between a municipality and a

public utility corporation, fixing rates to be charged

by the latter for a not grossly unreasonable period

of time, such rates are binding and enforceable,

even though confiscatory of the property involved.

St. Cloud Pub. Serv. Co. v. City of St. Cloud, 265

U. S. 352, 68 L. Ed. 1050. Nor can it be doubted

that under the statutes of the state of Washington

the department has the power to abrogate and cancel

such franchise rates, if in a proper case it sees fit

to do so. * * * Jt may be conceded that the

department was not obliged to grant any relief

against the rates stipulated in the franchises, and

that it could not by judicial action be compelled to

do so. Yet if it undertakes to terminate such rates,

pursuant to its plain statutory powers, the rates

substituted instead must be fair, just and reason-

able, if the plain mandate of the statute defining

its duties is to be obeyed. And when the substituted

rates are challenged, they must be considered as stat-

utory, not franchise, rates, and their character as

being confiscatory, or not, must be measured by the

principles of law applicable to such rates.” (Italics

ours. ) ,

The case is particularly in point in the matter now

before us, for the reason that the plaintiff here is attempt-

—43—

ing to attack the order of the Railroad Commission, as

was done by the city there. However, the important

distinction, in our opinion, is this, that in the Whitcomb -

case the state authorities had changed the contract rate

to that of a statutory rate. In the instant case there is

no such substitution.

In Monroe v. Detroit M. & T. Shortline R. Co., 187

Mich. 364, 153 N. W. 669, the contention was made in

behalf of the company that the State Utility Act operated

as a revocation of any power the city might have had

to regulate the service of the railroad by contract, or

otherwise. Of this contention the court said>

~ “It does not follow that because the contract may

yield to the exigency of public necessity, when such

exigency has been determined in a proper case and

manner by competent authority that the respondent,

a party to the contract, may ignore the contract

obligation, plead the public or its own convenience

as an excuse, and remit the relator to a commission

for relief. On the contrary, it seems wholly reason-

able that it should perform its contract obligations

until relieved therefrom by competent authority.”

V.

There Was No Change From the Contract or Fran-

chise Rate to a Statutory or Legislative Rate Due

to the Orders of the Railroad Commission, Either

(a) Under the May, 1921, Application and Order

(Decision No. 9029) ; or,

(b) Under the March 26, 1928, Decision and

Order (No. 19,521).

Under the first application of the plaintiff to the Rail-

road Commission, to which we will refer as the 1921

——

—44—

Application and Order, plaintiff pleads [R. 12; Allegation

IV of the Amended Complaint] that:

“In May, 1921, upon the application of plaintiff

to the Commission for an investigation of its service

and financial condition, and for an order authorizing

it to so operate its system and change its rates that

the income would be sufficient to pay the cost of

the service, the Commission made a permissive order

(Decision No. 9029) authorizing plaintiff, within

thirty days, to increase its basic five-cent fare to

six cents, and authorizing plaintiff to sell ten tickets

or tokens, in blocks, at a total cost of fifty cents.

* * * Said increase in fares was never charged

and collected by plaintiff, for the following rea-

sons * * .

Plaintiff then pleads that this increase in fare was

never put into effect, for the reasons that it desired to

operate its system, if possible, so that it would be unneces-

sary to increase the five-cent fare, and because the late

Henry E. Huntington, as principal owner and stockholder

of the properties, desired to attempt to increase the earn-

ings of the company by other means than the collection

of a basic fare greater than five cents. [R. 12.]

Attached to plaintiff’s amended complaint, Exhibit “D”,

in the concurring opinion of Commissioner Carr is the

statement [R. 169]:

“This is the second time this company has sought

from the Commission authority to depart from the

basic five-cent fare, which, with inconsequential ex-

ceptions, has prevailed on its Los Angeles system

for many years, and to enter upon the unchartered

sea of multi-coin fares,

“In November, 1918, the company came before —

the Commission with a request that its service and —

ie

financial condition be investigated. This finally re-

sulted, on May 31, 1921, in an order permitting the

company to charge a six-cent fare, with ten tokens _

or tickets for fifty cents, (Re Los Angeles Ry.

Corp., 19 C. R. C. 980) * * ache

“The company did not accept the increased fares

authorized by this decision, and after a period of

over five years, and on October 25, 1926, at the

instance of the company, the Commission set aside

and revoked its decision,” (Italics ours. )

Notwithstanding the fact that the 1921 Application

and Order is in effect not relied upon in any way by

appellee, as shown by its pleading, the court below, never-

theless, preferred

“to rest our decision upon the ground that even upon

the assumption that the city had power to fix the

utility rate by contract, and that the rate provisions

contained in the franchises granted to plaintiff did

constitute contracts, nevertheless, the rates specified

in the provisions of the franchises have been changed

by the exercise of the police power of the state. It

appears that in 1921 the Commission granted plain-

tiff company authority to increase its rates over the

basic five-cent fare, which was then in force. There

were in force and effect at that time 102 out of 116

franchises granted to plaintiff or its predecessors,

Since May, 1921, fourteen other franchises have been

granted. When the Commission, in 1921, made its

order changing the basic five-cent fare, it authorized

plaintiff to file with the Commission and put into

effect, thirty days from the date of the order, a

schedule of rates increasing the then present basic

fare of five cents to six cents, and directed that tick-

ets or tokens be put on sale. That plaintiff company

did not avail itself of the right to the increase does

—

—46—

not affect the fact that the Commission exercised

its exclusive jurisdiction to regulate rates by making

and finding that the rates provided for in the fran-

chises granted to plaintiff were inadequate and that

the six-cent fare authorized was a just rate.” (Italics

ours.) [R. 542-543.]

The errer in the conclusion of the court is manifest.

To base its decision upon this 1921 “Order” the court

below was forced to go beyond the pleadings and hold a

“permissive order” as pleaded is obligatory upon the city

in invalidating its franchises, notwithstanding the fact

that this permissive order had never been put into effect

or even been accepted by the utility. Even further facts

are revealed by the record that manifestly indicate the

~ erroneous conclusion of the court below, In the affidavit

of H. C. Mathewson, Secretary of the Railroad Commis-

sion [R. 347-350], is shown that on June 20, 1921, within

the period allowed by law, a petition for rehearing on

said decision was filed by the utility, in which the lawful-

ness of the order was challenged. The petition for rehear-

ing was set down for argument before the Commission

and removed from the calendar at the specific request of

respondent company. On October 13, 1926, respondent

company addressed the following letter to the Commis-

sion [R. 349]:

“In re Application No. 4238.

Gentlemen :

The above application was dropped from the Com-

mission’s calendar upon our request on March 14th,

1922, and no further action has been taken in the

matter since that date. In view of the entire change

of conditions since 1918, when Application No. 4238

=

was filed by this company, we at this time request

that your Honorable Commission dismiss Application

No. 4238 and the matters supplemental thereto.

Very respectfully, |

Los ANGELES RAILWAY CorPoRATION,

By (signed) G. J. Kuhrts,

Vice-President and General Manager.

Grisson, DuNN & CRUTCHER,

By

S. M. Haskins,

Its Attorneys.”

Thereafter, on October 25th, 1926, the Railroad Com-

mission issued its Decision No. 17,526, providing as fol-

lows [R. 349]:

“OrpeR SETTING AsipE DECISION AND DISMISSING

APPLICATION BY THE COMMISSION.

“Request having been made by applicant in the

above-entitled matter for dismissal of this applica-

tion, and good cause appearing for the granting of

said request,

It is hereby ordered that the above-entitled appli-

cation (being Application No. 4238) be, and the

same is hereby, dismissed; and

It is hereby further ordered that Commission

Decision No. 9029, heretofore rendered in the above-

entitled matter, which decision has been suspended

by virtue of the pendency of the petition for rehear-

ing, be, and the same is hereby, set aside and revoked.

Dated at San Francisco, California, this 25th day

of October, 1926.

H. W. Brunpice,

C. L. Seavey,

Ezra W. Decorto,

Leon O. WuIrzELL,

“ Commissioners.”

-- eT

—48—

Furthermore, under the Public Utilities Act (Stats.

1915, p. 115, as amended (Deering’s Genl. Laws of Cali-

fornia, 1923, Vol. II, p. 2683)), no change in public

utility rates is effective “except after thirty days’ notice

to the Commission and to the public, as herein provided

(Sec. 15)”; nor “until * * * schedules of rates, fares,

charges and classifications shall have been filed and pub-

lished in accordance with the provisions of this act (Sec.

17)”; nor until schedules showing all rates and fares to

be charged shall have been printed and filed with the

Commission (Sec. 18). In fact, Section 17 of the Act

prohibits any common carrier from engaging or partici-

pating “in the transportation of persons until its sched-

ules of rates, fares, charges and classifications shall have

been filed and published in accordance with the provisions

of this act.”

Furthermore, Section 27 of the Act provides:

“No street or interurban railroad corporation shall

charge, demand, collect or receive more than five

cents for one continuous ride in the same general

direction within the corporate limits of any city and

county, or city or town, except upon a showing before

the commission that such greater charge is justified;

provided, that until the decision of the commission

upon such showing, a street or interurban railroad

corporation may continue to demand, collect and

receive the fare lawfully in effect on November 3,

1914..°* 7. ™

And Section 63 of the Act provides as follows:

“(a) No public utility shall raise any rate, fare,

toll, rental or charge or so alter any classification,

contract, practice, rule or regulation as to result in

an increase in any rate, fare, toll, rental or charge,

—49—

under any circumstances whatsoever, except upon a

showing before the commission and a finding by the

commission that such increase is justified. * * *”

A perusal of the act as a whole indicates clearly that

no change in rates is effective until the provisions of the

act have been complied with. We submit that a permissive

order of such a nature is totally insufficient to constitute

a change of rate, within the purview of the act.

Recapitulating, we submit and maintain that the 1921

Order was totally ineffective to change the franchise

maximum rate, for the following reasons:

1. It was never acted upon by the public utility or

any of the parties;

2. It was never put into effect upon plaintiff's system

in any way;

3. It was abrogated and annulled by the Commission

at plaintiff's own request before it could become effective;

4, It has never been treated by plaintiff as anything

but a nullity, as its amended bill of complaint shows ( plain-

tiff's first cause of action is predicated entirely upon the

existence of franchise rates; and its second cause of action

is predicated entirely upon the refusal of the Railroad

Commission to change the franchise rates) ;

5. To rest the decision upon the 1921 order is going

entirely outside the scope of the pleadings ;

6. The change of rates was never effective under t

Public Utilities Act. |

Likewise, as the Commission refused to change the

franchise rates in 1928, we have further proof that the

public utility company admits that no change was contem-

—h0—

plated or effective under the 1921 order. We have many

decisions of this court, as well as of the courts of the

individual states, that refusal of the Commission to act is

not sufficient to change contract rates to statutory rates.

As this court said in the Henderson Water Co. case,

supra (269 U. S. 278):

“Only by securing the waiver of the franchise rates

by order of the Corporation Commission speaking for

the state did the water company have any standing to

ask for a fixing of rates in excess of the franchise

rates.”

In the City of Adrian case, supra (209 Mich. 52, 176

N. W. 590), it was said:

“That the contract ‘though binding between the

parties to it, in the absence of governmental interposi-

tion, is to be construed as having been entered into

with reference to the right and power of the govern-

ment to assert and exercise its inherent paramount

authority.’” (Italics ours.)

So, also, in the Whitcomb case, supra (12 Fed. (2d)

279), it was held that if the state

“undertakes to terminate such rates, pursuant to its

plain statutory powers, the rates substituted instead

must be fair, just and reasonable. * * * And

when the substituted rates are challenged, they must

be considered as statutory, not franchise, rates.

* * *” (Italics ours.)

As we stated, appellee here is not making any attack

upon the statutory rate but is solely concerned with enjoin-

ing the State Railroad: Commission and the City from

further continuance of the contract rates, and the entire

theory of its case is not based on the 1921 order in any

i

way, but is based entirely on the fact that a continuance

of the franchise rates is confiscatory of its property.

In the City of Adrian case, supra, Moorehead v. Union

Light, Heat & Power Co. (District Court), 255 Fed. 920,

was quoted with approval, to the following effect:

“ “These cases all decide that in determining whether

equitable relief should be granted with respect to a

contract, the court must place itself in the position

occupied by the parties at the time the contract was

made and not at the time at which it was to be per-

formed. If at the time it was made the contract was

fair and free from fraud, mistake or imposition, par-

ties must be left free to make their contracts, and it

is the duty of the courts to enforce them as made.

The same doctrine has been applied to contracts be-

tween municipalities and public utility companies.’ ”

(Italics ours. )

In the Southern Utilities Co. case, supra (268 U. S.

232), it was said:

“It is perfectly plain that the fact that the contract

might be overruled by a higher power does not destroy

its binding effect between the parties when it is left

undisturbed.”

In this regard, we maintain that the franchises continu-

ously have been and now are “undisturbed.”

We rely also on the Whitcomb case, supra (12 Fed.

(2d) 279), where it was said:

“It may be conceded that the department was not

obliged to grant any relief against the rates stipulated

in the franchise and that it could not by judicial action

be compelled to do so.”

—52—

And, also, the ruling in Monroe v. Detroit etc. Shortline

R. Co., supra (187 Mich. 364, 153 N. W. 669), holding:

“It does not follow that because the contract may

yield to the exigency of public necessity * * * a

party to the contract may ignore the contract obliga-

tion * -* * and remit the relator to a commission

for relief. On the contrary, it seems wholly reason-

able that it should perform its contract obligations

until relieved therefrom by competent authority.”

(Italics ours. )

We submit that there has been no relief by competent

authority from the contract rates, and the action filed by

the plaintiff herein is based entirely upon an effort on its

part to impair and abrogate the contracts in question

through injunctive method.

In addition, we direct the court’s attention to the fact

that after exhaustive investigations made by the Railroad

Commission the contract rates were held fair and reason-

able, and its ruling in that regard in 1928 is to continue

in effect such franchise or contract rates.

In conclusion, we might say that there are many cases,

both in the state of California and the federal courts, hold-

ing that until paramount authority has intervened and

modified franchises fixing rates, they must be recognized

as valid and enforceable in the courts.

Thus, in Henrici v. South Feather Land etc. Co., 177

Cal. 442, it was said:

“The obligation to furnish water at the agreed rate

was unlimited in time and continued until the rate

was superseded by order of a public body vested with

the power of regulating the service.”

—§3—

So, also, in Southern Pac. Co. v. Spring Valley Water

Co., 173 Cal. 291, it was said:

“Where the rates for water devoted to public use

have not been fixed by public authority, the person in

charge of the use and the consumer may freely con-

tract regarding the price of service and the manner

of payment, and such contracts will be deemed valid

by the courts and may be enforced by any appropriate

mode. (Fresno Canal etc. Co. y. Park, 129 Cal. 437

(62 Pac. 87); Stanislaus W. Co. v. Bachman, 152

Cal. 725, 730 (15 L. R. A. (N. S.) 359, 93 Pac. 858) ;

Leavitt v. Lassen Irr. Co., 157 Cal. 82, 90 (29 L. R.

A. (N. S.) 213, 106 Pac. 404).) * * * The

power to fix rates and regulate public service of water

devoted to public use ‘carries with it jurisdiction to

determine the reasonableness of charges, irrespective

of prior contracts, and to that extent such contracts

may be reformed.’ But until such public authority

has intervened and modified such prior contract it will

be recognized as valid and enforced in the courts.

7 + * = (Italics ours. )

So, also, in Salt Lake City v. Utah L. & T. Co., 173

Pac. 556, it was said:

“So long as the state does not interfere, the rates

agreed upon between the parties and the street rail-

way companies in the franchise ordinances are bind-

ing and enforceable.”

In Travers City v. Mich. R. R. Comm., 168 N. W. 481,

it was said:

“* * * The franchise contract * * * though

binding between the parties to it, in the absence of

governmental interposition, is to be construed as hav-

ing been entered into with reference to the right and

power of the government to assert and exercise its

inherent paramount authority.”

ile

In City of Manitowoc v. Manitowoc etc. Traction Co..

145 Wis. 13, 129 N. W. 925, it was said:

“The contract remained valid between the parties

to it until such time as the state saw fit to exercise its

paramount authority. * * * It is contended that

this law has superseded the contract involved in this

suit, and that therefore the contract no longer has any

binding force or effect. We do not think so. The

statute worked no change in existing rates. It simply

provided that all rates should be reasonable and left

to the Railroad Commission the power to determine

the fact as to whether or not a given rate was reason-

able. * * * Until that determination is made the

contract is in force. When it is made the contract is

superseded, if the rate is changed..* * * The

court cannot relieve the defendant from an improvi-

dent contract but the contract is of such a character

in the present instance that the legislative branch of

the government may in the interest of the public abro-

gate it. If, as is contended by counsel for the re-

spondent, no contract was entered into and we were

dealing with the ordinance as a legislative enactment

pure and simple, and not as part and parcel of a con-

tract, there might be good reason for the claim that

it is superseded by chapter 362, Laws of 1905, with-

out any affirmative action on the part of the Railroad

Commission. But such is not the case before us.”

(Italics ours. )

That case was cited with approval by this court in

Milwaukee Elec. Ry. v. Wis. R. R. Comm., 238 U. S. 174.

ae

VI.

The Absence of California Decisions Upholding the

Power of the City to Contract With Reference to

Rates Is Immaterial.

Counsel in the court below made frequent reference to

the fact that no specific California decision could be pointed

out wherein it was directly held that this city had the

power to contract with street railway companies for rates.

We merely wish to call the court’s attention to the fact

that it is not an ‘indispensable requirement or condition

precedent that California decisions be pointed out uphold-

ing the power to contract, before this court may find that

such power did, in fact, exist.

As illustrative of this doctrine, in the case of Milwaukee

Elec. Ry. & Light Co. v. R. R. Comm., 238 U. S. p. 174,

this court used the following language:

“* * * This court has repeatedly held that the

discharge of the duty imposed upon it by the Consti-

tution to make effectual the provision that no state

shall pass any law impairing the obligation of a con-

tract, requires this court to determine for itself

whether there is a contract and the extent of its bind-

ing obligation, and parties are not concluded in these

respects by the determination and decisions of the

courts of the states.”

It is clear, therefore, that even if there were decisions

of the California Supreme Court (which there are not )

to the effect that this City had not been given power by

the state to contract to fix rates, this court could find other-

wise. How much clearer it is, then; that where there has

been no expression from the Supreme Court of the state

with reference to the power to contract for rates, this

—56—

court has a duty to protect the obligation of a contract if i:

finds, under the record, that one existed.

Conclusion,

In concluding, we submit that the franchises in question

are contracts; that the City had, and now has, express

power, under the Constitution and laws of the state-of

California and the charter provisions granted to it, to

enter into such contracts, and that the provisions therein

limiting charges are valid and should be protected by the

state and federal constitutional guarantees prohibiting the

impairment of contracts; that it is immaterial that the

limitation upon maximum rates in the franchises prohibit-

ing the public utility from charging over five cents per

passenger has become confiscatory (even if, in fact, the

rates are confiscatory) ; that the plaintiff, appellee here, is

in no position to seek relief from the federal courts, where

the State Railroad Commission has refused to change the

franchise rates and has left the public utility and the City

as contracting parties in the same position in which they

were at the time the contracts were entered into; that there

has been no change of the franchise or contract rates to

statutory or legislative rates by orders of the Railroad

Commission ; that the State Constitution does not prohibit

the City from granting franchise contracts of the kind here

in question, on the ground that they are special privileges

or immunities, as they are subject to future regulation by

the state; that the franchises themselves exhibit an inten-

tion to make binding and valid contracts between the City

and the public utility; that if the appellee is entitled to any

change in the franchise rates, it is only by virtue of an

order to be made by the Railroad Commission, pursuant

a, aa

to article XII, section 23, of the State Constitution, and

the Public Utilities Act (Stats. 1915, p. 115, as amended) ;

that these rights are statutory and not judicial; that as —

appellee has failed to pursue its statutory rights, or even

to show that it is entitled to them, it has no standing in the

federal courts to seek injunctive relief to abrogate its con-

tracts with the City, on the “ground that such contracts

(willingly entered into by it) are confiscatory.

For these reasons, and upon the argument stated, we

feel that the action of the court below in abrogating the

rate fixed in the franchise contracts was in error, and the

decree should be reversed.

Respectfully submitted,

Erwin P. Werner,

City Attorney;

FREDERICK VON SCHRADER,

Deputy City Attorney;

JoszrH T. Watson,

Deputy City Attorney,

Attorneys for Appellant, C. ity of Los Angeles.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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