Pacific Telephone & Telegraph Co. v. City of Seattle

NETERER, District Judge (after stating the facts as above). The motion to dismiss must be denied. Some cause of action is, I think, stated. Has equity jurisdiction, or has the plaintiff a speedy and adequate remedy at law ? The property in the streets of the defendant city may be classified as installed (1) by the Independent Company prior to March 9, 1912; (2) by the Sunset Company prior to January 9, 1907; (3) by the plaintiff company between March 8, 1912, and July, 1923, under the Sunset franchise; (4) by the plaintiff company since July, 1923, under temporary permits. The plaintiff admits that all property installed by the Independent Company, remaining on the streets of the defendant on April 21, 1926, became on that date the property of the defendant (a list of the property is attached to the bill of complaint). The city contends that, all franchises having expired, the plaintiff is now a trespasser upon the streets of the city, and that it has an adequate remedy at law for damages accruing, and that the plaintiff, being a trespasser, may not invoke equity jurisdiction. This action was begun before Ordinance No. 6498 expired by limitation. Plaintiff, therefore, was not a trespasser at the inception of this suit (see, also, Doherty & Co. v. Toledo Ry. & L. Co. [D. C.] 254 F. 597), and the jurisdiction is determined as of the time the suit was commenced (Dawson v. Distilleries Co., 255 U. S. 288, 41 S. Ct. 272, 65 L. Ed. 638). Nor is equitable jurisdiction lost because a legal remedy subsequently may have become available. Clark v. Wooster, 119 U. S. 322, 7 S. Ct. 217, 30 L. Ed. 392; Busch v. Jones, 184 U. S. 598, 22 S. Ct. 511, 46 L. Ed. 707. The court judicially knows that the defendant city may not engage in the business of telephone service; that there is no concern capable of rendering efficient, or any, telephone service in the city, and that to qualify for such service would require an expenditure of large sums of money and much time in the placing of equipment; that the property in issue is an integral part of the telephone system of the plaintiff throughout the state, and to be deprived of its use, would prevent efficient service and destroy the revenues not only local, but long distance as well. One of the essential functions of equity is to anticipate and prevent injury where the damage would be irreparable or inadequate. Vicksburg Waterworks v. Vicksburg, 185 U. S. 65, at page 82, 22 S. Ct. 585, 46 L. Ed. 808. Am order directing the seizure, and consequent disruption of the plaintiff’s business, where damages are uncertain and injury irreparable, will awaken the eon-, science of the chancellor. North v. Peters, 138 U. S. 271, 11 S. Ct. 346, 34 L. Ed. 936. See, also, United States v. Bernard, 202 F. 728, 121 C. C. A. 190. Equity -will not giye relief where a plain and adequate remedy at law exists, but how could law compensate for the grievances of which the plaintiff complains, if consummated. Watson v. Sutherland, 5 Wall. 74, 18 L. Ed. 580. In order to exclude a concurrent remedy in equity, the remedy at law must be complete, practical, efficient, and meet the ends of justice. Stephens v. Ohio State Telephone Co. (D. C.) 240 F. 759; Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 19 S. Ct. 77, 43 L. Ed. 341; Davis v. Wakelee, 156 U. S. 680, at page 688, 15 S. Ct. 555, 39 L. Ed. 578. See, also, Castle Creek W. Co. v. City of Aspen, 146 F. 8, 76 C. C. A. 516, 8 Ann. Cas. 660; Destructor Co. v. City of Atlanta (D. C.) 219 F. 996. [880] If the superintendent of public utilities of the defendant found that the plaintiff “has so commingled and confused the franchise property in the streets that it is impossible to segregate from the balance of the property poles, wires, and conduits placed in the streets by the predecessors in interest of said company, while owning the franchises granted by said Ordinance No. 6498, as amended, * * * ” etc., then “he is hereby authorized and directed to take possession of all poles, wires, conduits of such company, placed in the streets on or prior to January 21, 1926. * * * ” The city by this ordinance delegated to the superintendent of public utilities the power to adjudicate title to property erected under different ordinances, by adjudicating a fact with relation to confusion. This is a power which the city cannot delegate. The Supreme Court, in Turner et al. v. C., M. & St. P. Ry. Co., 46 S. Ct. 530, 70 L. Ed. —, decision filed May 24, 1926, held that the Congress may not delegate to the Interstate Commerce Commission the power to fix a penalty for violating provisions of the Interstate Commerce Act, that being a legislative function which cannot be delegated. By the same token, the defendant city, through its legislative body, may not delegate or impose judicial power to or upon its superintendent of publie utilities. The plaintiff in its complaint charges that the defendant superintendent will execute such order unless restrained, and the presumption is that he will follow directions; the direction in the ordinance is a step indicating a purpose to interrupt the continuity of the plaintiff’s telephone service, and, as said by the Supreme Court in Boise Artesian Water Co. v. Boise City, 213 U. S. 276, 29 S. Ct. 426, 53 L. Ed. 796, it is clear reason for the interposition of a court of equity, “for if that were done illegally or unconstitutionally an injury would be inflicted for which the law could afford no adequate remedy. In such a ease it would be the plain duty of a court of equity to arrest the destructive steps until their legality or constitutionality could be determined.” See, also, Terrace v. Thompson, 263 U. S. 197, 44 S. Ct. 15, 68 L. Ed. 255; Fredenberg v. Whitney (D, C.) 240 F. 819. The affidavit of the defendant Jackson may not be considered in fixing jurisdiction. The city can speak only through its council. Old Colony Trust Co. v. City of Wichita (C. C.) 123 F. 762. The motion to transfer to the law side is overruled.