NETERER, District Judge
(after stating the facts as above). The complainant contends, in oral argument, no briefs being filed, first, that. [699]*699the reserved power of the city to repeal the franchise ordinance is equivalent to the rescission clause in a private contract, and the franchise being a contract between the parties (Dern v. Salt Lake City Ry. Co., 19 Utah, 46, 56 Pac. 556), it is governed by the general rales applicable to contracts, and that before the city could repeal the franchise and declare a forfeiture, it must return, or offer to return, the strip of laud along and over which the road in issue is built, and the Bowman franchise, received in consideration of the passage of the franchise Ordinance No. 15,919, and having failed to place the parties in stain quo, it cannot maintain this action (Andrews v. Hensler, 6 Wall. 254, 18 L. Ed. 737; German Savings Inst. v. Machinery Co., 70 Fed. 146, 17 C. C. A. 34; Kauffman v. Raeder, 108 Fed. 171, 47 C. C. A. 278, 54 L. R. A. 247; Minah Consolidated Mining Co. v. Brisco (C. C.) 47 Fed. 276; Doughten v. Bidg. Assn., 41 N. J. Eq. 556, 7 Atl. 479; Hanna v. Haynes, 42 Wash. 284, 84 Pac. 861; 28 Cyc. 384); second, that either party may waive any breach of the conditions of the franchise ordinance contract, and that anything that would constitute a waiver of a breach in a contract constitutes a waiver of the conditions of the ordinance, and that defendant had waived all delinquencies of complainant, if any; and, third, that even though the court should find tiiat the complainant had made default in some of the conditions of the ordinance, that complainant had two remedies — (a) to compel compliance with the conditions of the ordinance; or (b) to rescind the ordinance- — and, having elected to enforce the provisions of the ordinance, cannot claim forfeiture, and that from the evidence it must be concluded that the complainant has expended large sums of money in building up the railway, and that there are not now any delinquencies on complainant’s part, and a court of equity would not, under such circumstances, destroy property that is being built up. The respondent vigorously contends that the city was not, under the reserved power of the ordinance, required to tender the right of way strip, and that the acts clone by the city did not constitute an election or waiver, and, a forfeiture having been declared hj the city, the court should so decree.
The following authorities are cited by the city: Beuton v. Seattle Electric Co., 50 Wash. 161, 96 Pac. 1033; Ewing v. City of Seattle, 55 Wash. 229, 104 Pac. 259; Farnsworth v. Minnesota & Pac. R. R. Co., 92 U. S. 49, 23 L. Ed. 531; Sioux City St. Ry. Co. v. Sioux Citv, 138 U. S. 98, 11 Sup. Ct. 226, 34 L. Ed. 901; Tacoma Ry. & P. Co. v. City of Tacoma, 140 Pac. 565; State of Wash. ex rel. Sylvester v. Super. Court, 60 Wash. 279, 111 Pac. 19; Farmers’ Loan & Trust Co. v. City of Galesburg, Ill., 133 U. S. 156, 10 Sup. Ct. 316, 33 L. Ed. 581; Wheeling & E. C. R. Co. v. Triadelphia, 58 W. Va. 487, 52 S. E. 499, 4 L. R. A. (N. S.) 333; Union St. Ry. v. Snow, 113 Mich. 694, 71 N. W. 1073; Daly v. City of Carthage, 143 Mo. App. 564, 128 S. W. 266; City of Belleville v. Citizen’s Horse Ry. Co., 152 Ill. 171, 38 N. E. 585, 26 L. R. A. 681; Southern Bell Telephone & Telegraph Co. v. City of Richmond (C. C.) 98 Fed. 672; Boston Electric Light Co. v. Boston Terminal Co., 184 Mass. 566, 69 N. E. 346; Los Angeles Ry. Co. v. City of Los Angeles, 152 Cal. 242, 92 Pac. 490, 15 L. R. A. (N. S.) 1269, 125 Am. St. Rep. 54; Peterson v. Tacoma Ry. & P. Co., 60 [700]*700Wash. 406, 111 Pac. 338, 140 Am. St. Rep. 936; Com. Elec. L. & P. Co. v. Tacoma, 17 Wash. 670, 50 Pac. 592; Tacoma v. Boutelle, 61 Wash. 434, 112 Pac. 661; State v. West End Light & Power Co. (Mo.) 152 S. W. 79; 2 Pomeroy’s Equity Jurisprudence, § 805, p. 1423.
[1] The conclusion we have reached makes it unnecessary to discuss the question of tender. We think the election of remedy and waiver determine the issue, and these, being so interwoven, will be discussed together.
We do not deem it necessary to enter upon an extended discussion as to whether the complainant made default^ in the conditions of the ordinance. The condition of the streets over which its franchise extended during the time covered by the controversy by reason of street improvements was unusual. Upon the matter of fares and transfers there must have been an honest difference of opinion (Seattle Electric Co. v. City of Seattle [D. C.] 206 Fed. 955), and that issue was on the date of the passage of the repealing ordinances pending in the state court for adjudication. That the community was not adequately served during a portion of the time in issue cannot be doubted. Whether the conditions referred to were such as to justify complainant will not be entered upon.
[2] The city, upon the failure of the complainant to carry out the provisions of the franchise ordinance, if default was made, had two remedies: First, to compel compliance with the provisions of the ordinance ; or, second, to declare a forfeiture of the franchise right. The election of one remedy with full knowledge is an irrevocable bar to the other. The Fred E. Sander (D. C.) 212 Fed. 545; Thompson v. Howard, 31 Mich. 309; Achey v. Creech, 21 Wash. 319, 58 Pac. 208; In re Pederson’s Estate, 97 Minn. 491, 106 N. W. 958.
The city, in June, 1910, commenced two actions for the enforcement'! of the fare and transfer provisions of the ordinance, respectively, in the state court, in the name of State ex rel. Linhoff v. Seattle, R. & S. R. Co., 62 Wash. 544, 114 Pac. 431, and State ex rel. Dennison v. Seattle, R. & S. R. Co., 64 Wash. 167, 116 Pac. 638, respectively. This was an election on the part of the city to compel compliance with the conditions of the franchise ordinance. This election was confirmed in September, 1910, when an ordinance was passed by the defendant city, amending Ordinance No. 15,919, changing the route over some of the streets in the franchise, and while the repealing ordinances were passed on December 23, 1910, the city did not abandon the actions, but in January and February, 1911, the causes were tried in the state trial court,, and thereafter, during the same year, were tried before the Supreme Court of the state, and later one of the causes appealed to the Supreme Court of the United States, 231 U. S. 568, 34 Sup. Ct. 185, 58 L. Ed. 372; the city’s counsel appearing on behalf of the complainant before each of the courts named, at the expense of the city.
“When the state, or any subordinate governmental body to whose charge the matter has been committed, after knowledge of the act or omission constituting a ground of forfeiture, does any act which unequivocally recognizes the franchise .as still existing and in force, a waiver of the forfeiture will be inferred.” Santa Rosa City Ry. v. Railway Co., 4 Cal. Unrep. 950, 38 Pac. 986.
[701]
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NETERER, District Judge
(after stating the facts as above). The complainant contends, in oral argument, no briefs being filed, first, that. [699]*699the reserved power of the city to repeal the franchise ordinance is equivalent to the rescission clause in a private contract, and the franchise being a contract between the parties (Dern v. Salt Lake City Ry. Co., 19 Utah, 46, 56 Pac. 556), it is governed by the general rales applicable to contracts, and that before the city could repeal the franchise and declare a forfeiture, it must return, or offer to return, the strip of laud along and over which the road in issue is built, and the Bowman franchise, received in consideration of the passage of the franchise Ordinance No. 15,919, and having failed to place the parties in stain quo, it cannot maintain this action (Andrews v. Hensler, 6 Wall. 254, 18 L. Ed. 737; German Savings Inst. v. Machinery Co., 70 Fed. 146, 17 C. C. A. 34; Kauffman v. Raeder, 108 Fed. 171, 47 C. C. A. 278, 54 L. R. A. 247; Minah Consolidated Mining Co. v. Brisco (C. C.) 47 Fed. 276; Doughten v. Bidg. Assn., 41 N. J. Eq. 556, 7 Atl. 479; Hanna v. Haynes, 42 Wash. 284, 84 Pac. 861; 28 Cyc. 384); second, that either party may waive any breach of the conditions of the franchise ordinance contract, and that anything that would constitute a waiver of a breach in a contract constitutes a waiver of the conditions of the ordinance, and that defendant had waived all delinquencies of complainant, if any; and, third, that even though the court should find tiiat the complainant had made default in some of the conditions of the ordinance, that complainant had two remedies — (a) to compel compliance with the conditions of the ordinance; or (b) to rescind the ordinance- — and, having elected to enforce the provisions of the ordinance, cannot claim forfeiture, and that from the evidence it must be concluded that the complainant has expended large sums of money in building up the railway, and that there are not now any delinquencies on complainant’s part, and a court of equity would not, under such circumstances, destroy property that is being built up. The respondent vigorously contends that the city was not, under the reserved power of the ordinance, required to tender the right of way strip, and that the acts clone by the city did not constitute an election or waiver, and, a forfeiture having been declared hj the city, the court should so decree.
The following authorities are cited by the city: Beuton v. Seattle Electric Co., 50 Wash. 161, 96 Pac. 1033; Ewing v. City of Seattle, 55 Wash. 229, 104 Pac. 259; Farnsworth v. Minnesota & Pac. R. R. Co., 92 U. S. 49, 23 L. Ed. 531; Sioux City St. Ry. Co. v. Sioux Citv, 138 U. S. 98, 11 Sup. Ct. 226, 34 L. Ed. 901; Tacoma Ry. & P. Co. v. City of Tacoma, 140 Pac. 565; State of Wash. ex rel. Sylvester v. Super. Court, 60 Wash. 279, 111 Pac. 19; Farmers’ Loan & Trust Co. v. City of Galesburg, Ill., 133 U. S. 156, 10 Sup. Ct. 316, 33 L. Ed. 581; Wheeling & E. C. R. Co. v. Triadelphia, 58 W. Va. 487, 52 S. E. 499, 4 L. R. A. (N. S.) 333; Union St. Ry. v. Snow, 113 Mich. 694, 71 N. W. 1073; Daly v. City of Carthage, 143 Mo. App. 564, 128 S. W. 266; City of Belleville v. Citizen’s Horse Ry. Co., 152 Ill. 171, 38 N. E. 585, 26 L. R. A. 681; Southern Bell Telephone & Telegraph Co. v. City of Richmond (C. C.) 98 Fed. 672; Boston Electric Light Co. v. Boston Terminal Co., 184 Mass. 566, 69 N. E. 346; Los Angeles Ry. Co. v. City of Los Angeles, 152 Cal. 242, 92 Pac. 490, 15 L. R. A. (N. S.) 1269, 125 Am. St. Rep. 54; Peterson v. Tacoma Ry. & P. Co., 60 [700]*700Wash. 406, 111 Pac. 338, 140 Am. St. Rep. 936; Com. Elec. L. & P. Co. v. Tacoma, 17 Wash. 670, 50 Pac. 592; Tacoma v. Boutelle, 61 Wash. 434, 112 Pac. 661; State v. West End Light & Power Co. (Mo.) 152 S. W. 79; 2 Pomeroy’s Equity Jurisprudence, § 805, p. 1423.
[1] The conclusion we have reached makes it unnecessary to discuss the question of tender. We think the election of remedy and waiver determine the issue, and these, being so interwoven, will be discussed together.
We do not deem it necessary to enter upon an extended discussion as to whether the complainant made default^ in the conditions of the ordinance. The condition of the streets over which its franchise extended during the time covered by the controversy by reason of street improvements was unusual. Upon the matter of fares and transfers there must have been an honest difference of opinion (Seattle Electric Co. v. City of Seattle [D. C.] 206 Fed. 955), and that issue was on the date of the passage of the repealing ordinances pending in the state court for adjudication. That the community was not adequately served during a portion of the time in issue cannot be doubted. Whether the conditions referred to were such as to justify complainant will not be entered upon.
[2] The city, upon the failure of the complainant to carry out the provisions of the franchise ordinance, if default was made, had two remedies: First, to compel compliance with the provisions of the ordinance ; or, second, to declare a forfeiture of the franchise right. The election of one remedy with full knowledge is an irrevocable bar to the other. The Fred E. Sander (D. C.) 212 Fed. 545; Thompson v. Howard, 31 Mich. 309; Achey v. Creech, 21 Wash. 319, 58 Pac. 208; In re Pederson’s Estate, 97 Minn. 491, 106 N. W. 958.
The city, in June, 1910, commenced two actions for the enforcement'! of the fare and transfer provisions of the ordinance, respectively, in the state court, in the name of State ex rel. Linhoff v. Seattle, R. & S. R. Co., 62 Wash. 544, 114 Pac. 431, and State ex rel. Dennison v. Seattle, R. & S. R. Co., 64 Wash. 167, 116 Pac. 638, respectively. This was an election on the part of the city to compel compliance with the conditions of the franchise ordinance. This election was confirmed in September, 1910, when an ordinance was passed by the defendant city, amending Ordinance No. 15,919, changing the route over some of the streets in the franchise, and while the repealing ordinances were passed on December 23, 1910, the city did not abandon the actions, but in January and February, 1911, the causes were tried in the state trial court,, and thereafter, during the same year, were tried before the Supreme Court of the state, and later one of the causes appealed to the Supreme Court of the United States, 231 U. S. 568, 34 Sup. Ct. 185, 58 L. Ed. 372; the city’s counsel appearing on behalf of the complainant before each of the courts named, at the expense of the city.
“When the state, or any subordinate governmental body to whose charge the matter has been committed, after knowledge of the act or omission constituting a ground of forfeiture, does any act which unequivocally recognizes the franchise .as still existing and in force, a waiver of the forfeiture will be inferred.” Santa Rosa City Ry. v. Railway Co., 4 Cal. Unrep. 950, 38 Pac. 986.
[701]*701The defendant contends that the Santa Rosa City Railway Case is distinguishable from the instant case in this: That in that case the forfeiture had not been declared when the amended ordinance was passed, while in the instant case the forfeiture was declared after the amended ordinance was enacted, and that, the conditions of the ordinance being continuing, that subsequent default would be presumed. The continued conduct of the city in harmony with the remedy selected, and the spirit of the amendment, when considered with the recognition given the franchise ordinance in the ordinances subsequently passed with relation to the municipal line, the condemnation of complainant’s railway line, and condemnation of land for widening of Rainier avenue, and reception of benefits as disclosed, we think, answers the argument. A party cannot “blow hot and cold at the same time.” The city cannot “eat its cake and keep it, too.” The enforcement of the provisions of the franchise ordinance and repealing the ordinance are inconsistent, and both remedies cannot be pursued. Farmers’ Loan & Trust Co. v. City of Galesburg, 133 U. S. 156, 10 Sup. Ct. 316, 33 L. Ed. 573; Robb v. Vos, 155 U. S. 14, 15 Sup. Ct. 4, 39 L. Ed. 52; Allen v. Webb, 24 N. H. 278; Weeks v. Robie, 42 N. H. 316; Pfeiffer v. Marshall, 136 Wis. 51, 116 N. W. 871; Genet v. Delaware & H. Canal Co., 28 App. Div. 328, 51 N. Y. Supp. 377; Smith v. Berryman, 173 Mo. App. 148, 156 S. W. 40; State v. People’s Ice Storage & Fuel Co., 246 Mo. 168, 151 S. W. 101; Pickle v. Anderson, 62 Wash. 552, 114 Pac. 177; Holt Mfg. Co. v. Strachan, 77 Wash. 380, 137 Pac. 1006; Conrow et al. v. Little et al., 115 N. Y. 387, 22 N. E. 346, 5 L. R. A. 693; A. Klipstein & Co. v. Grant, 141 Fed. 72, 72 C. C. A. 511; German Savings Inst. v. Machinery Co., 70 Fed. 146, 17 C. C. A. 34.
The fact that the city passed the amendatory ordinance, and failed in even an attempt at abandonment of the remedy selected by dismissing the actions commenced, upon passing the repealing ordinances and continuing to pursue the remedy selected, strongly emphasized the election of remedy theretofore made and subsequent affirmance; but, in addition, it passed an ordinance fixing a schedule for the operation of complainant’s cars operated under the franchise in issue, and passed the further ordinances in which special recognition was given to the validity of Ordinance No. 15,919, as disclosed in the statement of facts preceding this opinion. The city required the expenditure of more than $50,000 in street improvements and betterments along the complainant’s tracks, and received $47,917 in city taxes, a material part of which was for franchise valuation, received 2 per cent, on the gross earnings of the complainant pursuant to the ordinance for the years prior to 1912, retained the deposit made by the complainant for street improvements pursuant to the ordinance, and presented bills for inspection by the utilities department for the improvemlents and betterments covering the entire period of time to the present. The city cannot derive any benefits from the franchise and yet rescind the ordinance which gives it life. The franchise must be nullified in toto or not at all. Lyon v. Bertrand, 20 How. 149; Stuart v. Hayden, 72 Fed. 402, 18 C. C. A. 618. The contention of the defendant on the argument that the restraining order prevented it from enforcing the repealing ordinances, [702]*702and what was done was simply in harmony with keeping the property in statu quo, and not done with any intent or purpose of giving Ordinance No. 15,919, and amendments, recognition or vitality, cannot overcome the affirmative acts disclosed by the record, in the absence of an agreement or understanding between the parties that such acts should not be considered an affirmance. McNaught v. Equit. Life Assurance Society, 136 App. Div. 774, 121 N. Y. Supp. 448.
After the reception and holding of the taxes and the gross per cent, provided by the ordinance, and benefit of the- sums expended for street improvements, deposit made by complainant pursuant to the franchise ordinance, payment of inspection charges to utilities department of the defendant for improvements and betterments made, and recognition of the validity of the franchise ordinance, as disclosed by the record, all done after the selection of remedy as stated in this opinion, the city will not be permitted to contend that the repealing ordinances have any vitality. To hold otherwise appears to us, under the record, would be violative of the principle of fair dealing and sound morality.
The repealing ordinances will be held inoperative, and defendant enjoined from enforcing any of the provisions thereof.