# Pacific Electric Railway Company v. Los Angeles

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United States Supreme Court
194 U.S. 112
Pacific Electric Railway Company v. Los Angeles
Argued: March 7, 1904. --- Decided: April 11, 1904
This is an appeal directly from the circuit court. The appellant asserts rights under the Constitution of the United States, in that a contract alleged to exist between it and the council of the city of Los Angeles, granting appellant a franchise under the statute hereinafter mentioned, was impaired by the action of the council. Also that the property of appellant was taken without due process of law.
By an act of the legislature of the state of California, passed March 11, 1901 (statutes of California, extra session thirty-third legislature, 1900, p. 265), it is provided that every franchise or privilege to operate street railroads upon the public streets or highways shall not be granted by the respective governing bodies of any city and county, city or town, except upon certain conditions; to wit, the applicant for the franchise must file with 'the governing or legislative body' any application, and thereupon said body may, in its discretion, if the application be accompanied by a petition signed by the owners of three fourths of the frontage of the real property fronting along and upon the route of the franchise applied for, advertise the fact of the application and that it (the governing body) proposes to grant the same. The advertisement must be in some newspaper published in the municipality wherein the franchise is to be exercised, and must state that bids will be received for such franchise, and that it will be awarded to the highest bidder. The advertisement must state a number of other matters, but, as no point is made upon them, they are omitted.
In pursuance of the statute appellant made application to the council of the city of Los Angeles for an electric street railroad franchise. The application was referred to the board of public works, which board recommended the franchise be offered for sale. The report was adopted by the council and the franchise was offered for sale, and notice thereof was given as required by the statute. The notice given was very full and circumstantial, but its contents are immaterial to the views we take of the case.
Bids were received by the council on the 10th of February, 1902. Appellant bid $25,000; W. S. Hook, who, it is alleged, was president of the Los Angeles Traction Company, bid $37,500; E. A. Davis, one of the appellees, bid $139,000, and E. Murray bid $415,000. There were no other bids.
Section 5 of the act of 1901 provides that at the time of opening of the bids any responsible sponsible firm or corporation present or represented may bid for the franchise or privilege a sum not less than 10 per cent above the highest sealed bid therefor, and said bid so made may be raised 10 per cent by any responsible bidder present, and said franchise or privilege finally be struck off, sold, and granted by said governing body to the highest bidder therefor, in gold coin of the United States, who shall deposit with the 'governing body,' or such person as it shall direct, the amount bid within twenty-four hours thereafter. In case of failure to do so 'then the said franchise or privilege shall be granted to the next highest bidder therefor.'
No person raising the bid E. Murray, in accordance with § 5, his bid was accepted, and it was ordered that said franchise be struck off and sold to said Murray, and the city treasurer was ordered and directed to receive the money therefor. It was further ordered that the period of twenty-four hours within which he was allowed to pay for the franchise should expire at 3.15 P. M. on February 11, 1902.
The bids of Hook, Davis, and Murray were all made on behalf of the Los Angeles Traction Company and for its benefit, and with the fraudulent intent of preventing competition and further bidding when the bids should be open, well knowing that the franchise was not worth the sum of $415,000 and that no advance on the same was to be made. And it is alleged that Murray has no financial standing, never intended to pay his bid, and did not pay the same or offer to pay the same within the time allowed, and never appeared again before the council.
On the 11th of February the traction company and Davis and Hook appeared before the council, and, in pursuance of their fraudulent scheme, claimed that the council had no authority or power to do any other thing than to accept the bid of Davis for $139,000, and demanded that the said franchise be awarded to him. Such proceedings were had that the council declared the bid of Murray to be fraudulent and void, and the matter of the sale of the franchise was again taken up. Appellant thereupon bid the sum of $152,000, and presented with its bid a certificate of deposit on one of the banks in the city, drawn in the name of the city for said sum. Bids over and above said bid were called for by the council, but none was received, and the franchise was ordered to be sold and struck off to appellant. The treasurer was also directed to receive the purchase money, which was paid by appellant in United States gold coin, and it was accepted by the treasurer and the council. Appellant executed a bond in the sum of $25,000 as required by the statute, and the franchise was thereupon struck off, sold, and granted to appellant. Subsequently the council passed an ordinance granting the said franchise to appellant, and presented the same to the mayor of the city, who returned the same to the council without his signature or approval, and with his objections to the same. On the 21st of February the question came up before the council for the passage of the ordinance, notwithstanding the veto of the mayor. The ordinance was not passed, but the council passed a resolution pretending and purporting to order any and all bids to be rejected, and ordered the treasurer of the city to refund to appellant the money paid, and the clerk to return the bond executed and filed by appellant-all of which was done by the council under the pretense that the approval of the mayor to the ordinance passed, as above stated, was necessary to give it validity or to make effectual the grant made by the city of the franchise to appellant.
It is alleged that the council of the city, under the statute of the state, had no discretion as to the bid of appellant, but were, on the contrary, by the operation of said statute, ordered to strike off, sell, and grant the franchise to appellant, and no ordinance was necessary to perfect the grant, and the mayor was not authorized to perform any function in, about, or concerning said franchise, and his veto was wholly unfounded; and the title of the appellant became fully vested under the statute, and there was no power in the mayor or the council, or in both, to in any manner affect the rights which had accrued to appellant by virtue of its franchise.
That appellant had become vested with the title to the franchise, and the orders and resolution of the council, pretending to reconsider the order granting the franchise as above stated, and readvertising the application, were made without any authority, and were intended to deprive appellant of its said property without due process of law, in violation of the provision of the Constitution of the United States prohibiting any state from depriving any person of life, liberty, or property without due process of law.
That under the statute, notice of sale, and order granting the franchise, appellant was required to commence work for the construction of the road within four months from the 11th of February, 1902, and complete the same within three years from that date. That appellant was and is desirous of commencing such construction, but on the 26th of February, 1902, the council passed an order instructing the mayor, the street superintendent, and the chief of police to stop and prevent any attempt appellant might make to construct said road upon any of the streets with all the force at their command, and said officers, acting under such instructions, will undertake by violence to prevent appellant from constructing said road or exercising any rights under its franchise, or for any enjoyment of its property so acquired unless prevented by the court (circuit court).
That if the city should sell said franchise, rights, and privileges again it will aid the purchaser, with the police force of the city, to take possession of the city property, rights, and franchises, and construct a road over and along said route, and to oust and exclude appellant therefrom, and appellant will be compelled to resort to a mutiplicity of suits to protect and defend its rights, privileges, and franchise purchased by it, and its right to exercise and enjoy the same, and appellant will suffer great and irreparable damage, which cannot be compensated in money.
The relief prayed is that appellant be declared the owner in fee simple of the rights and franchise described; that the orders of the council, reconsidering the order selling and granting the same, and all of the proceedings of the council subsequent thereto, be rescinded and vacated, and the appellees be restrained from preventing appellant from constructing the road and exercising the rights, privileges, and franchise granted.
The city of Los Angeles and the appellees composing its council demurred to the bill. The other appellees also demurred, and the grounds of demurrer, were among others, that the court had no jurisdiction of the subject-matter of the suit, and the bill was without equity. The circuit court overruled the demurrers on the first ground and sustained them on the second. 118 Fed. 747.
Mr. J. S.C.hapman and Messrs. Bicknell, Gibson, & Trask, Hunsaker & Britt, Works & Lee, and Dunn & Crutcher for appellant.
Messrs. W. B. Mathews and Jonathan R. Scott for appellees.
Statement by Mr. Justice McKenna:
Mr. Justice McKenna, after stating the case, delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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