(dissenting) — I dissent. I have no fault to find with the principles of law which are enunciated by the majority opinion, or the rule laid down by the authorities therein cited, but- think they have no application to this particular case. They apply to bona -fide transactions and *515actual conditions. But from an examination of the record in this case, I am convinced that appellant is attempting to evade its obligations by a denial of the truth; certainly, so far as the operation of the different tracks is concerned; probably, so far as ownership is concerned. The contractual obligation was with reference to lines owned, operated, or controlled; and, interpreting the actions of the appellant rather than its assertions, if the proof in this case does not sustain the city’s contention that the appellant is at least, operating and controlling the traction line, then in my opinion no proof which will satisfy the law can ever be made where a bare denial is offered by the defendant. These were two lines built and operated as competing lines. The competition was intense, to the extent that ordinary courtesies were refused. There was- no trackage connection and, of course, no exchange of cars. The traction company managed its affairs in every particular. But in 1909 the Puget Sound' Electric Railway purchased a majority of the stock of the traction line, it already owning the stock of the railway company. They are managed largely by the same directors. Physical connections were then made. The tx’action company gave up its business office in Tacoma. Cars of each company are used on the lines of the other indiscriminately, a general superintendent was appointed to take charge of both, and in this appointment the traction company had no voice. The repair shops of the traction line were discontinued, and machinery removed to the appellant’s shops. All of the managing officers of the traction company quit its service, and it passed absolutely and xvholly into the hands of appellant, and its identity was lost. I am assuming, of course,, that the Puget Sound Electric Railway, the Tacoma Railway & Power Company, and Stone & Webster are all the same concern. This assumption is justified by the testimony. After this merger, there was nothing left of the traction company as an entity but the filmy system of bookkeeping where the-traction company is credited and charged as though it really-*516enjoyed a separate existence. I am satisfied from the testimony that this is simply a subterfuge, and that the expense of the bookkeeping is many times repaid by the fees which are saved'to the company through its agency. The majority say:
“We would be glad to hold with the relator, for nothing ■can work greater hardship and inconvenience to the public than two lines of street railway, operating in the same community but denying the right of transfer. But the legal effect of such ruling would be to make a judicial decree consolidating two companies which under their franchises were designed to be competing lines, a result generally held to be void on the ground of public policy.”
This would be sound doctrine applied to two actually competing lines, but the legal effect of the majority opinion, as I read the testimony, is to permit the inconvenience and hardship which is regretted by the majority, in a case where the public is even deprived of the Benefit of competition.
The judgment should be affirmed.