Newsom v. City of Rainier

BURNETT, J. 1. One of the principal questions to be considered is the validity of the franchise embodied in Ordinance No. 26. It will be observed that no limitation of time is contained in the enactment, but it will continue so long as the grantees comply with its terms. This constitutes a plain perpetuity within the meaning of City of Joseph v. Joseph Water Works Co., 57 Or. 586 (111 Pac. 864, 112 Pac. 1083). The court [202] there, speaking by Mr. Chief Justice Eakin, held that a municipality has no authority to grant a perpetual . utility franchise. This being so, the ordinance conferred no right upon the plaintiff, and within the meaning of that principle he has no standing to assert any claim for relief against the city based on that enactment of its common council. 2, 3. Another proposition is equally conclusive against the plaintiff. The ordinance which he accepted, and under which' he claims, constituted a contract or franchise between the city and himself. As one remedy for a breach of its terms on his part, they provided in Section 3 that— “All rights and privileges conferred by this ordinance may be forfeited by any future council upon a failure to supply a sufficient amount, of water for legitimate household purposes.” The parties had a right thus to contract about the remedy for noncompliance with the conditions of the franchise. There is nothing unlawful about such a contract and, as said in Breitenbach v. Bush, 44 Pa. St. 313 (84 Am. Dec. 442): “If the parties adjust or modify the legal remedies for themselves by making them an express and substantive part of their contract, they cannot, as to that particular contract, be changed by the legislature.” No more can the court disregard the line of conduct which the parties lawfully have marked out for their intercourse with each other. The council is a legislative body and in respect to perpetuating or ending the ordinance in question it must act in its legislative capacity. Consequently, the only method by which the council could forfeit the rights conferred by the ordinance was by another ordinance repealing it or declaring it void. This was within the contemplation of the [203] parties at the time they entered into the convention in question. 4. It is said in 8 Cyc. 727: “Where the questions involved are of a political character and action depends upon a construction to be given a constitutional provision or statute, courts will not only give great consideration to construction of such provisions or statutes -by the political departments of the government in doubtful cases, but they are bound by such constructions where the power is of a discretionary character and making those who are called upon to exercise those powers, in the first instance judges of questions of fact and existing conditions. ’ ’ An instance illustrating this principle is found in the original Constitution of this state whereby the legislature was authorized to create a separate Supreme Court, “when the white population of this state shall amount to 200,000.” In Cline v. Greenwood, 10 Or. 230, the court, speaking by Mr. Justice Lord, respecting this constitutional provision, said, “that section of the Constitution can only be made operative by legislative action.” Another instance of the principle is found in the doctrine that the Governor is the exclusive judge of the facts requiring an extraordinary session of the legislature: Farrelly v. Cole, 60 Kan. 356 (56 Pac. 492, 44 L. R. A. 464); State v. Fair, 35 Wash. 127 (76 Pac. 731, 102 Am. St. Rep. 897). Having committed the annulment of this franchise to the legislative body of the city, viz., the council, the court would not necessarily be called upon to enforce the forfeiture. We are bound to presume that the council, thus clothed with authority by the express stipulation of the parties, ascertained facts warranting a cancellation of the franchise, and its findings, upon which we must conclude that it acted, are bind [204] ing upon us and we would impair the obligation of the contract if we disregarded the action of the body to which the parties committed this prerogative. Of course, if no provision had been made about the manner in which the forfeiture of the franchise might be effected, it would have required a judicial procedure to accomplish that end, based upon the violation of its terms by the grantee. But the present instance is not such a case. Neither is it like State ex rel. v. Birmingham Water Works Co., 185 Ala. 388 (64 South. 23, Ann. Cas. 1916B, 166): “The municipal ordinance or resolution which grants a franchise to a public service corporation may also comprehend the terms of a contract between the municipality and the service corporation, prescribing the obligations and restraints by which each is to be governed, and the conditions upon which the franchise is granted and may be exercised. In so far as such an ordinance is merely contractual in its nature, it is subject to revocation or rescission for such material breaches of its terms as would justify the rescission of other contracts by offended parties in interest. * * But in so far as it grants a franchise, or consents to the exercise of a franchise granted on that condition by the state legislature, it cannot, at least in the absence of express authority, be revoked by the municipality for the grantee’s misconduct so as to annul the franchise — a result which can be accomplished only by judicial action at the instance of the state, or contingently at the suit of the municipality.” In the present juncture, however, an express authority has been conferred upon the council to revoke the franchise when in its judgment the conditions have arisen warranting such an action. The conclusion is that the Circuit Court was right also in overruling the demurrer to the defense based upon the repeal of the ordinance granting the franchise. It is unnecessary [205] to determine the validity of the court’s ruling upon the demurrers to the other defenses. The decree is affirmed. Aeeibmed. Benson, Bean and Harris, JJ., concur.