I accept for present purposes the statement of the majority which reads:
"Since, then, the city was acting in its proprietary capacity in passing ordinance No. C5066, the reasonableness of the rate of compensation therein fixed is open to challenge by appellant. The fact that the rate is the same as that fixed by agreement in the franchise ordinance of 1904 is evidence that it is reasonable, but it is not conclusive."
Under the facts of this case, this seems a reasonable rule, though respectable authority based on cogent reasoning might be cited to the contrary.
The city acted upon this rule in presenting its evidence to the trial court, and under this rule made out a prima facie case. The defense, to meet the issue thus presented, showed only that its customers and its sales had tended to decrease in recent years under the growing competition from others furnishing light and heat, *Page 113 but, as the amount to be paid was fixed as a percentage on the gross sales, it nowhere appeared from the evidence thus presented that the rental became any more burdensome because of such decrease. In other words, the rental bore a fixed relation to the gross receipts, and increased and decreased as those receipts fluctuated. Hence, the mere fact that appellant's activities were limited and tended toward a decrease under modern conditions furnished no evidence that the rate or the amount to be paid was any more unreasonable under the conditions shown than it had been at any time during the twenty-five years when it was paid without protest. It was upon this theory that the case was taken from the jury. The city now seems to concede that, if the evidence offered with reference to other franchises granted to other public service corporations was properly excluded, then the ruling was right.
The whole question here, then, is as to the competency of the evidence offered tending to show what was paid to the city by other public service corporations for the use of its streets in furnishing service to its citizens. There was no attempt made to limit this evidence to particular franchises bearing any reasonable similarity to the franchise here involved, if there were any such. Seemingly, it is admitted that these various franchises were granted at different times for entirely different purposes, each placing a different burden upon the streets, and each bringing to the citizens a different character of service.
In my judgment, the trial court correctly ruled when he said:
"If the court should enter into that sort of an inquiry, there would be no end to it. The phase involved in this issue here does not involve the service of other public utilities. . . . A contract made either before *Page 114 in time or subsequent to your franchise, the conditions under which it was made, would have to be inquired into. The judgment of the jury would have to be substituted for the judgment of the agencies of the municipality which at that time negotiated and granted the privilege to the applicant."
Obviously, there is no answer to be found which will meet that ruling. To submit to a jury all of the franchises granted by the city, whether by vote of its people or by action of the city council, in the last thirty-five or forty years, and to attempt to inform the jury as to the conditions under which each was granted, and then ask them to draw a comparison, would result only in confusion worse confounded.
Each individual franchise granted by the city must stand on its own foundation. There is always involved the peculiar question of what, under the particular circumstances then existing, the particular traffic can, should and will bear; the necessity of the public, its need of the service, and the general good, if any, to be accomplished by granting the right to furnish it. It is conceivable that, in some conditions, because of the general good to follow, a franchise might well be granted with no compensation to the city; while in another instance, under different conditions, a service placing an even greater burden on the streets might reasonably be required to pay a very substantial rental. To ask a jury to review the whole franchise history of a city and from such a review to say by their verdict what is a reasonable charge in a particular case, is to lose sight of every established rule for arriving at a correct result.
I therefore dissent.
BEALS, C.J., concurs with TOLMAN, J.
GERAGHTY, J., took no part. *Page 115