Ashland Electric Power & Light Co. v. City of Ashland , 217 F. 158 ( 1914 )

WORVERTON, District Judge

(after stating the facts as above). [1] If the plaintiff has acquired the right and privilege of constructing and maintaining an electric lighting system within the city by irrevocable grant or contract, any attempt on the part of the city to summarily oust the plaintiff would be tantamount to depriving it of its property without due process of law, contrary to section 1, art. 14, of the federal Constitution, and hence a federal question would be involved. Boise Water Co. v. Boise City, 230 U. S. 84, 33 Sup. Ct. 997, 57 L. Ed. 1400.

[2] The chief controversy is whether it was competent for the city council of the city of Ashland to confer a perpetual right or authority upon the plaintiff to construct and maintain an electric lighting system within the city. It has been definitely settled by authority of the Supreme Court that a—

“grant by ordinance to an incorporated telepbo-ne company, its successors and assigns, of the right to occupy the streets and alleys of a city with its poles and wires for the necessary conduct of a public telephone business, is a grant of a property right in perpetuity, unless limited in duration by the grant itself or as a consequence of some limitation imposed by the general law of the state, or by the corporate powers of'the city making the grant.” Owensboro v. Cumberland Telephone Co., 230 U. S. 58, 65, 33 Sup. Ct. 988, 990 (57 L. Ed. 1389); Boise Water Co. v. Boise City, 230 U. S. 84, 33 Sup. Ct. 997, 57 L. Ed. 1400; Detroit v. Detroit Citizens’ Street Ry. Co., 184 U. S. 368, 22 Sup. Ct. 410; 46 L. Ed. 592; Louisville v. Cumberland Telephone Co., 224 U. S. 649, 32 Sup. Ct. 741, 56 L. Ed. 1151.

The grant is one to exercise the right generally, without any limitation as to the time of its running. There is no limitation set upon such a grant by general law, so far as I have been advised; nor is there to be found in the corporate powers of the city existing at the time of the grant any such restriction. So it would seem, in view of these authorities, that the grant was one in perpetuity.

It is insisted that to enable a municipality in Oregon to confer such a privilege its authority must be deduced from the Constitution or statutes of the state, and specially conferred, and that the state Supreme Court has so held. The essential difference between that doctrine and the doctrine of the federal Supreme Court is that by the former it is deemed that explicit legislative authority is essential to the conferring of a perpetual license, while by the latter a general authorization to grant a right or privilege of the kind is considered to carry with it the power to confer a perpetual license, such license partalcing of the nature of a contract with the city, and a grant by the city without limitation as to time must be deemed perpetual in its operation. See Owensboro v. Cumberland Telephone Co., supra.

[3] The case cited which is thought to be controlling is City of Joseph v. Joseph Waterworks Co., 57 Or. 586, 111 Pac. 864, 112 Pac. 1083. But the question was not involved in that case, and hence could not have been decided, so as to render it an authoritative precedent. The right and privilege granted by the Joseph ordinance was for a term of 15 years. This was so ascertained by the court. So there could have been no perpetual grant for the court to pass upon respecting its validity. But were that case to be deemed authoritative of the doctrine announced, the legislative confirmation in the present case by the act amendatory of section 4750, Bellinger and Cotton’s Ann. Codes, is ample to ratify the power and authority exercised in conferring a perpetual franchise upon the plaintiff corporation. The Legislature was competent to ratify any act which it might have originally authorized. 26 Am. & Eng. Enc. of Law (2d Ed.) 698.

The motion to dismiss will be denied.