Washington ex rel. City of Seattle v. Pacific Telephone & Telegraph Co. , 1 F.2d 327 ( 1924 )

NETERER, District Judge

(after stating the facts as above). Mandamus is a high prerogative writ. 3 Bla. Com. 110; Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. It is an extraordinary remedy, where the usual and ordinary modes of procedure are powerless, and where without its aid there would bo a failure of justi.ee. Virginia T. & C. S. & I. Co. v. Wilder, 88 Va. 942, 14 S. E. 806. It has been termed a “criminal process relative to civil rights.” Lord Mansfield, in Rex v. Barker, 3 Burr. 1265, said: “It was introduced to prevent disorder from failure of justice and defect of! police,” and “if there bo a right and no other specific remedy this should not be denied.” It is the absence of a specific legal remedy which gives the court jurisdiction. Com. v. Common Council, 34 Pa. 496. But the party must have a perfect legal right. Williams v. Cooper, 27 Mo. 225. It is an action at law between the parties. Kentucky v. Dennison, 65 U. S. (24 How.) 66, 16 L. Ed. 717. It cannot be granted in equity. Smith v. Bourbon, 127 U. S. 105, 8 Sup. Ct. 1043, 32 L. Ed. 73; People v. Olds, 3 Cal. 167, 58 Am. Dec. 398. There must be a positive ministerial duty, and no appropriate remedy to enforce it. State v. Knight, 31 S. C. 81, 9 S. E. 692; Shine v. Railroad Co., 85 Ky. 177, 3 S. W. 18; State v. Kinkaid, 23 Neb. 641, 32 N. W. 612. It is a proper remedy to enforce a specific ministerial act. Roberts v. U. S., 176 U. S. 230, 20 Sup. Ct. 376, 44 L. Ed. 443. It will always be denied when there is other adequate remedy. State v. Hamil, 97 Ala. 107, 11 South. 892; County of San Joaquin, etc., v. Superior Court, 98 Cal. 602, 33 Pac. 482. The writ is not a matter of right, but-is to be awarded in the discretion of the court (People v. Croton, etc., 49 Barb. [N. Y.] 259; Wiedwald v. Dodson, 95 Cal. 450, 30 Pac. 580), unless a clear legal right is shown, or a statutory duty which is clear and undisputable,-and there is no other legal remedy (Ill. Central Ry. Co. v. People, 143 Ill. 434, 33 N. E. 173, Bayard v. U. S., 127 U. S. 248, 8 Sup. Ct. 1223, 32 L. Ed. 116). It is a remedy to compel performance of a duty fixed by law; no other adequate remedy being afforded, the duty being clear and undisputable. State ex rel. Krutz v. Wash. Irr. Co., 41 Wash. 283, 83 Pac. 308, 111 Am. St. Rep. 1012.

The form of the action is not controlling. The court must look beyond to the-purpose of the action (State of Ind. v. Allegheny Oil Co. [C. C.] 85 Fed. 870; State of Iowa v. C., B. & Q. R. Co. [C. C.] 37 Fed. 497 [Justice Brewer]; Illinois v. Ill. Central Ry. Co. [C. C.] 33 Fed. 721 [Justice Harlan]); and police provision or license in an ordinance may also contain contract provisions, the essential right. or power of either not being changed (Pittsburgh, C. & S. L. Ry. Co. v. Hood, 94 Fed. 618, at page 624, 36 C. C. A. 423 [Justices Taft, and Lurton and Judge Clark]). This court, in Schoenfeld v. City of Seattle, 265 Fed. 726 at page 732, said: “The control ■ of the streets in the city is exclusive; its power is plenary ”

This power is a grant from the state. The state has the power to give and it has the power to take away. The city has the power to permit the streets to be occupied at sufferance or by license. If at sufferance it may under its general police power regulate the occupancy in the interest of the common welfare and for the general public good, or it may limit the manner of use within its general power as a condition to its occupancy for the common welfare, and may combine with the exercise of this power the condition that public service be furnished at a specified and agreed rate, and upon acceptance such condition becomes a contract enforcible by either party subject only to control by the state. At the time of the enactment of the ordinance in issue the city had the right to fix the charges to be made by the grantees of the telephone franchise for the service to be rendered to the city and its residents. This could be lost only by the intervention of the state (State ex rel. Ellertsen v. Home T. & T. Co., 102 Wash. 196, 172 Pac. 899), and when the Public Service Commission of Washington in December, 1911, assumed control and fixed rates or tariffs for telephone service in the city, the right to fix and regulate rates rested in the Department of Public Works, successor to the Public Service Commission. The franchise obligation between the city and the defendant company was a contract until the bond was cut by the state.. State ex rel. Ellertsen, supra.

Looking at the petition and affidavit of the plaintiff, we find a franchise granted which limited the charges for use of phones, and which franchise was afterwards acquired by the defendant, its telephone system constructed and maintained thereunder, “other telephone lines, facilities, and equipment” acquired by the defendant, and so “commingled, consolidated, and confused with the franchise property as to be incapable of being disassociated or disassembled therefrom.” We therefore have franchise and non-franchise property, and the franchise transferred in trust, it is alleged, to another, without any of the franchise appliances or telephone system for the purpose of avoiding the contract obligation, and the increase of rates over the contract ordinance rate by the Public Service Commission of Washington (Department of Public Works), and the establishment of the “Burleson tariff” war rate without right, and the maintenance of the unlawful rate by the' defendant for approximately five years, and the threat to further increase rates on the 1st of August ensuing, and the prayer in substance that the contract relation to the ordinance be re-established and extended over the entire system of the defendant, including the “commingled” and “consolidated” property, and that a rate be established by the court, using as a basis the rate fixed by the ordinance increased by the Public' Service Commission, and not a higher rate than that established by the “Burleson tariff” war rate— establish a reasonable rate.

There is no positive, perfect, legal right, definite and determined; no clear and undisputable duty fixed by law or order. The relation of duty is inchoate and requires the application of judicial findings and decree to establish. There is no legislative act touching a public duty. State ex rel. Seattle v P. S. T. L. & P. Co. (D. C.) 243 Fed. 748. That the relation created by the ordinance and orders and that the issue of this action is contractual is confirmed by the prayer in the petition, which is a guide for the relief sought (Cum. Tel. & Tel. Co. v. Hickson, 129 Ky. 220, 111 S. W. 316), and the conduct of the plaintiff.

The court judicially knows that the plaintiff city, through its legal department, in the litigation now pending in this court (Pacific T. & T. Co. v. Dept. of Public Works, 2 F. [2d] —; Id., 265 U. S. 196, 44 Sup. Ct. 553, 68 L. Ed. 975), appeared before the court composed of three judges (see-lion 266, Judicial Code [Comp. St. § 1243]), and asserted by affidavit and argument the contractual relation between the defendant and the city, and urged duty of defendant here, plaintiff there, to specific performance of such obligation. At bar it is stated that the city did not appear; that- the city’s legal department appeared on behalf of the Attorney General of the state. Separate briefs were filed by the state and by the city of Seattle, city of Spokane, and city of Tacoma through their several legal departments, urging the contractual relation of each to the defendant here by reason of their respective ordinances, and praying specific performance as against the relief sought by the plaintiff there, defendant here. Extended argument was made by the legal departments of the state and the several cities. It is immaterial that the city appeared through the state on the relation of the Department of Public Works. This action is prosecuted by the state on the relation of the city. Ordinance No. 45054 of the plaintiff city authorized, empowered, and directed the city’s legal department to appear in the litigation then pending in this court. The issue here pending — rates-—is properly an issue in that action, in which a temporary injunction has been issued.

Consideration of the ordinance in issue and the orders of the Public Service Commission and Department of Public Works was given by the three-judge court, composed of two Circuit Judges and one District Judge. The writer, as a member of that court, did not agree with the conclusion of the majority, believing that the court should be convinced beyond a reasonable doubt of the necessity (Paul Steam System Co. v. Paul [C. C.] 129 Fed. 757), and in the exercise of sound discretion manifestly just in view of all existing .circumstances disclosed by the record (Society of Sisters of the Holy Name, etc., v. Pierce [D. C.] 296 Fed. 928), a question of doubt was created (Brooklyn Baseball Club v. McGuire [C. C.] 116 Fed. 782; Anargyros & Co. v. Anargyros, 93 C. C. A. 241, 167 Fed. 753), and that the function of a preliminary injunction primarily is to preserve the status quo (Nat. Commodities Co. v. Viret [C. C. A.] 296 Fed. 664), and the rate having been in force for several years, and a speedy trial could bo had, and a doubtful issue in relation to depreciation, surplus fund, and the 4% per cent, contract with the parent company, and the issne of law on schedule of rates fixed by ordinance, and a majority of the Public Service Commission having sustained the old rate, the unusual proceeding of issuing a temporary injunction (Northwestern Bell Tel. Co. v. Hilton [D. C.] 274 Fed. 384) should not be adopted and the status quo disturbed.

The conclusion of the majority of the court was that it appeared upon the record that in all probability the litigation would result in an increase of the present rates, and adopted the view of the District Court in Northwestern Bell Telephone Co. v. Hilton, 274 Fed. 384, appreciating that if the rates are finally increased the plaintiff will be irreparably injured if the injunction is denied, and if the rates are not increased the' subscribers could be protected by a bond requiring the repayment of any excess of ratea collected over the rates as finally determined. Consideration was therefore given by the three-judge court, two members of which are judges of the Circuit Court of Appeals, to the ordinance here urged.

It is urged that this court, in State of Washington ex rel. Seattle v. P. S. T. L. & P. Co., 243 Fed. 748, remanded a like case under like circumstances. The issues are entirely dissimilar. At page 752 the court‘said: “In the instant case the only issue presented is whether there is just excuse for not operating the railway.” There was a positive, perfect, legal right, clear and undisputable duty fixed by law, a legislative act touching a public duty. The question of contract or charges was not involved. In the instant ease the defendant is operating the utility, and the charges for use are the issue, and these are not determined and fixed. This action is clearly a proceeding in equity. In re State ex rel. Ellertsen, supra, the franchise obligation had not been abrogated by the Public Service Commission, and the procedure was not challenged.

Myers and Phillips,are clearly not indispensable partios, and jurisdiction cannot be defeated by joining formal or unnecessary parties. Salem Trust Co. v. Mfrs. Finance Co., 264 U. S. 182, 44 Sup. Ct. 266, 68 L. Ed. 628. They have no interest in this litigation as disclosed by the record; they are mere employees (Pond v. Sibley [C. C.] 7 Fed. 129) and may be discharged at any time. Any decree binding the defendant company would bind the employees. Geer v. Mathieson Alkali Works, 190 U. S. 428, 23 Sup. Ct. 807, 47 L. Ed. 1122. No relief is sought against the said individual defendants, and the act complained of is the act of the defendant company. Venner v. S. P. Co. (C. C. A.) 279 Fed. 832. There is no point of approach from which the court can conclude other than to deny the motion to remand. Appended are the cases cited by the respective parties, all of which have been examined, but time will not permit an analysis or application, nor would a good purpose be served thereby.

The motion to remand is denied.

Authorities Cited by Plaintiff.

Section 28, vol. 5, Fed. Stat. Ann. p. 16 (Comp. St. § 1010); Little York Gold Washing, etc., Co. v. Keyes, 96 U. S. 199, 24 L. Ed. 656; Kentucky v. Powers, 201 U. S. 1, 26 Sup. Ct. 387, 50 L. Ed. 650, 5 Ann. Cas. 692; Rosenbaum v. Bauer, 120 U. S. 450, 7 Sup. Ct. 633, 30 L. Ed. 743; Wilkinson v. Nebraska, 123 U. S. 286, 8 Sup. Ct. 120, 31 L. Ed. 152; Western Union Tel. Co. v. State, 165 Ind. 492, 76 N. E. 100, 3 L. R. A. (N. S.) 153, 6 Ann. Cas. 880; State v. Flannelly, 96 Kan. 833, 154 Pac. 235; Fletcher v. Hamlet, 116 U. S. 408, 6 Sup. Ct. 426, 29 L. Ed. 679; Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. 799, 29 L. Ed. 962; Wilson v. Oswego Township, 151 U. S. 56, 14 Sup. Ct. 259, 38 L. Ed. 70; Hyde v. Ruble, 104 U. S. 407, 26 L. Ed. 823; Blake v. McKim, 103 U. S. 336, 26 L. Ed. 563; Ayers v. Chicago, 101 U. S. 184, 25 L. Ed. 838; Wilson v. Big Joe Block Coal Co., 135 Iowa, 531, 113 N. W. 348, 14 Ann. Cas. 266; Diamond State Tel. Co. v. Blake, 105 Md. 570, 66 Atl. 631; Heffelfinger v. Choctaw, etc., R. Co. (C. C.) 140 Fed. 75; Sloane v. Anderson, 117 U. S. 275, 6 Sup. Ct. 730, 29 L. Ed. 899; Rosenthal v. Coates, 148 U. S. 142, 13 Sup. Ct. 576, 37 L. Ed. 399; Western Union Tel. Co. v. Louisville & N. R. Co. (D. C.) 201 Fed. 932; Harley v. Firemen’s Fund Ins. Co. (D. C.) 245 Fed. 471; Plant v. Harrison (C. C.) 101 Fed. 307; Groel v. U. S. Elec. Co. (C. C.) 132 Fed. 252; State ex rel. City of Seattle v. Pug. Sound Traction, Light & P. Co. (D. C.) 243 Fed. 748; 3 Blackstone, Commentaries, 110; Thompson v. Central Ohio R. Co. et al., 6 Wall. 134, 18 L. Ed. 765; Robinson v. Campbell, 3 Wheat. 212, 4 L. Ed. 372; Kendall v. United States, 12 Pet. 524, 9 L. Ed. 1181; 19 Am. & Eng. Ency. Law, p. 876; Richmond Ry. & Elec. Co. v. Brown, 97 Va. 26, 32 S. E. 775; People ex rel. Jackson v. Suburban R. Co., 178 Ill. 594, 53 N. E. 349, 352, 49 L. R. A. 650; State ex rel. City of Vincennes v. Vincennes Traction Co., 187 Ind. 291, 117 N. E. 961; People ex rel. Brush v. N. Y. Suburban Water Co., 38 App. Div. 413, 56 N. Y. Supp. 364; Willcox et al. v. Richmond L. & R. Co. et al., 142 App. Div. 44, 128 N. Y. Supp. 266, 270; Gas & Elec. S. Co. v. Manhattan & Q. Tr. Corp. (C. C. A.) 266 Fed. 625, 636; Potter v. Calumet Elec. St. Ry. Co. (C. C.) 158 Fed. 521, 528; State ex rel. Bristow v. Landon, 100 Kan. 593, 165 Pac. 1111; Com. Union Tel. Co. v. New England Tel. & Tel. Co., 61 Vt. 241, 17 Atl. 1071, 5 L. R. A. 161, 15 Am. St. Rep. 893; N. P. R. Co. v. Washington, 142 U. S. 492, 12 Sup. Ct. 283, 35 L. Ed. 1092; Richmond Ry. & Elec. Co. v. Brown, 97 Va. 26, 32 S. E. 775; sections 1014, 1015, Rem. Comp. Stat.; State ex rel. Ellertsen v. Home Tel. & Tel. Co., 102 Wash. 196, 172 Pac. 899; Board of Trustees v. State, 175 Ind. 147, 93 N. E. 851; City of Bridgeton v. Bridgeton & Millville Traction Co., 62 N. J. Law, 592, 43 Atl. 715, 45 L. R. A. 837; City of Emporia v. Emporia Ry. & Light Co., 92 Kan. 232, 139 Pac. 1185; Potwin Place v. Topeka Ry. Co., 51 Kan. 609, 33 Pac. 309, 37 Am. St. Rep. 312; Rutherford v Hudson River Traction Co., 73 N. J. Law, 227, 63 Atl. 84; State ex rel. Grinsfelder v. Spokane St. Ry Co., 19 Wash. 518, 53 Pac. 719, 41 L. R. A. 515, 67 Am. St. Rep. 739; State ex rel. Lewis v. Hodge, 90 Wash. 487, 156 Pac. 404; People v. N. Y. C. & H. R. R. R. Co., 28 Hun, (N. Y.) 543; State ex rel. J. A. Dennison v. Seattle, Renton & So. Ry. Co., 64 Wash. 167, 116 Pac. 638; State ex rel. Linhoff v. S. R. & S. Ry. Co., 62 Wash. 544, 114 Pac. 431; State ex rel. City of Seattle v. S. & R. V. Ry. Co., 113 Wash. 684, 194 Pac. 820, 15 A. L. R. 1194; Bailey on Habeas Corpus, etc., vol. 2, pp. 776, 777; Kelly v. Grand Circle W of W. (C. C.) 129 Fed. 830; Bath County v. Amy, 13 Wall. 244, 20 L. Ed. 539; Mystic Milling Co. v. Chi., M. & St. P. Ry. Co. (C. C.) 132 Fed. 289; Indiana v. Lake Erie & W. R. Co. (C. C.) 85 Fed. 1; Robinson v. Campbell, 3 Wheat. 212, 4 L. Ed. 372, 376; Thompson v. Central Ohio R. R. Co., 73 U. S. (6 Wall.) 134, 18 L. Ed. 765, 767; Smith v. Bourbon County, 127 U. S. 105, 8 Sup. Ct. 1043, 32 L. Ed. 73, 77; Moloney v. Cressler, 210 Fed. 104, 126 C. C. A. 618; Thayer et al. v. Life Ass’n of America, W. A. Ralfe, et al., 112 U. S. 717, 5 Sup. Ct. 355, 28 L. Ed. 864; Remington, Comp. Stat. § 1026; Id. § 8966, subd. 7; Hebb v. County Court, 48 W. Va. 279, 37 S. E. 676; West Va. Northern R. Co. v. U. S., 134 Fed. 198, 67 C. C. A. 220; Schoenfeld v. Seattle (D. C.) 265 Fed. 726.

Authorities Cited by Defendants.

State of Washington v. Tacoma Ry. & Power Co. (C. C.) 244 Fed. 989, 990; State of Indiana v. Alleghany Oil Co. (C. C.) 85 Fed. 870, 873; State of Iowa v. Chicago, B. & Q. R. Co. (C. C.) 37 Fed. 497, 498, 3 L. R. A. 554; State of Illinois v. Ill. Cent. Ry. Co. (C. C.) 33 Fed. 721, 727; State ex rel. City of Tacoma v. Tacoma Ry. & Power Co. (C. C.) 244 Fed. 989; State ex rel. Seattle v. Puget Sound Trac., Light & Power Co. (D. C.) 243 Fed. 748; North Carolina Pub. Serv. Co. v. Southern Power Co. (C. C. A.) 282 Fed. 837, 840; Salem Trust Co. v. Mfrs. Finance Co. et al., 264 U. S. 182, 44 Sup. Ct. 266, 68 L. Ed. 628; Geer v. Mathieson Alkali Works, 190 U. S. 428, 433, 23 Sup. Ct. 807, 47 L. Ed. 1122; Venner v. Southern Pac. Co. (C. C. A.) 279 Fed. 832, 839; Hatch v. Chi., Rock Is. & Pac. R. Co., Fed. Cas. No. 6,204, 6 Blatchf. 114, 115, 116; Sidway v. Mo. Land & Live Stock Co. (C. C.) 116 Fed. 381, 386; Lamm v. Parrot Silver & Copper Co. (C. C.) 111 Fed. 241, 244; King v. Beaumont (D. C.) 296 Fed. 531 (decided January, 1924); Reese v. Zinn (C. C.) 103 Fed. 97; Black’s Dillon on Removal, § 85; City of Winfield v. Wichita Natural Gas Co. (C. C. A.) 267 Fed. 47, 50; Hyde v. Victoria Land Co. (C. C.) 125 Fed. 970, 973; Rogers v. Penobscot Mining Co., 154 Fed. 606, 610, 83 C. C. A. 380; Foster on Fed. Prac. (6th Ed.) p. 2957; Cumberland Tel. & Tel. Co. v. City of Hickson, 129 Ky. 220, 111 S. W. 311, 316; Pond v. New Rochelle Water Co., 183 N. Y. 330, 76 N. E. 211, 1 L. R. A. (N. S.) 958, 5 Ann. Cas. 504; Murray v. New York Tel. Co., 81 Misc. Rep. 636, 143 N. Y. Supp. 534; Farnsworth v. Boro Oil & Gas Co., 76 Misc. Rep. 37, 134 N. Y. Supp. 348, affirmed 216 N. Y. 49, 109 N. E. 860; Wackenhut v. Empire Gas, etc., Co. (Sup.) 166 N. Y. Supp. 29; Buffalo Merchants’ Delivery Co. v. Frontier Tel. Co. (Sup.) 112 N. Y. Supp. 862; Morell v. Brooklyn Borough Gas Co., 113 Misc. Rep. 72, 184 N. Y. Supp. 656; Rochester Telephone Co. v. Ross, 125 App. Div. 76, 109 N. Y. Supp. 381; Washington County Water Co. v. Mayor and Council of Hagerstown, 116 Md. 497, 82 Atl. 826, Ann. Cas. 1913C, 1022; City of Wheeling v. Natural Gas Co., 74 W. Va. 372, 82 S. E. 345; Maryland, etc., Co. v. Charles Simons Sons Co., 303 Md. 136, 63 Atl. 314, 115 Am. St. Rep. 346; State v. Bridge Co., 20 Kan. 404, 414; Mobile Electric Co. v. Mobile, 201 Ala. 607, 79 South. 39-42, L. R. A. 1918F, 667; Zanesville Gaslight Co. v. City of Zanesville, 47 Ohio St. 1, 23 N. E. 60; Newark v. North New Jersey St. R. Co., 73 N. J. Law, 265, 62 Atl. 1003; State v. New Orleans, etc., R. Co., 37 La. Ann. 589; City of Camden v. Public Service Co., 82 N. J. Law, 246, 82 Atl. 607; State ex rel. v. Railroad Co., 43 N. J. Law, 505, 512; State ex rel. County Commissioners v. Zanesville & Maysville Turnpike Road Co., 16 Ohio St. 308; City of Saginaw v. Consumers’ Power Co., 213 Mich. 460, 182 N. W. 146; State ex rel. Krutz v. Wash. Irr. Co., 41 Wash. 283, 83 Pac. 308, 111 Am. St. Rep. 1019; Commonwealth v. Wilkes-Barre Gas Co., 2 Kulp (Pa.) 499.