Edison Electric Co. v. City of Pasadena, No. 1,739

No. 1,739 | 9th Cir. | May 2, 1910

ROSS, Circuit Judge

(after stating the facts as above). One of the errors of counsel for the plaintiff in error lies ill the assumption that, unless the contract in question expressly states that it provides for the lighting of the streets of the city, no such intention can be attributed to the instrument as the case is presented. That is not at all so. It is often easy to ascertain the true meaning of a written instrument by taking it by its four corners, even though expression of its real intention be purposely concealed. Quite true it is, as said by counsel, that in its caption the agreement is called “Contract leasing street lighting system,” and in its body it is spoken of as a “lease,” that the city “hires” from the company, and that the sums therein mentioned to be paid by the city are called “rentals.” But these names are by no means of themselves conclusive of the true character of the instrument. It will be observed that in the contract above set out there is nothing-said about where the electric power was to come from. But in the companion suit between the same parties, also under submission to us and next to be disposed of, it appears that at the same time, to wit, July 30, 1904, another written contract was entered into between them, whereby the plaintiff was to furnish the power to be used through the so-called “leased” system for one year, upon certain specified terms, with provisions therein made for extensions of that agreement covering the entire period of five years for which the “system” is claimed to have been leased to the city.

Turning to the so-called lease, we find, first, a recital of these facts:

“That the Company is the owner, and enjoying the use and occupation, within the public streets of the city of Pasadena, of a system of poles, wires, lamps, brackets, and other apparatus constituting a complete street equipment for the purpose of transmitting electricity, and for the purpose of lighting the public streets and places within said city, as well as furnishing, light and and power to others than said city; that during several years prior to the date hereof it has, with the use of a portion of said system, been furnishing the city with electric, light for lighting its streets and public places; that scattered about the said city, and in places located by said city, there are now installed and in use for lighting said city as a part of said street lighting system fifty-four (54) long burning arc lamps, and thirteen hundred and twenty-one (1321) 16-candle power incandescent lamps, all properly connected with the necessary apparatus for their present actual and continued use; that the city wishes to light its streets and public places at a less expense for area lighted than heretofore.”

And then follows a pretended leasing to and hiring -by the city of “that part of the Company’s said electric distributing system within said streets and public places, which is now, and heretofore has been, used for the purpose of furnishing the city with light, together with such extensions thereof as may during such leasehold period be installed for such lighting purposes,” for a period of five years, at a lump sum per year as rental for the use of that part of the system for the first three years, and another and different lump sum per year for the last two years, and certain monthly payments for certain extensions to the system which, it is declared, shall also be covered by the “lease.” And this specified part of the system, the-contract provided, the company would keep “in proper condition for doing the work for which it is intended and leased, and will furñish all of the necessary labor, apparatus, and equipment therefor, without expense to the city” — most extraordinary provisions, certainly, if the city was really the lessee of the property. AVhat possible reason can be assigned for the company furnishing the labor necessary for carrying on the city’s business? Then, too, the contract provides that, “during the leasehold period, excepting the, last six months thereof, the company will make such extensions to said system as may be needed in order to properly light said city” — not in order that the city might be properly lighted by the city itself, but that the company will make such extensions to said system as may be needed “in order to properly light said city”; in other words, that the company will make such extensions as may be needed to enable it, the company, to properly light the city. And these provisions are followed by the declaration that:

“The Company reserves to itself the right to use its entire street distributing system above mentioned for its own private business, in distributing ligln. aud power to its customers, so as in no way to prevent the use thereof by the city for the purpose of lighting its public streets and places.”

We think it perfectly evident that the two contracts entered into between these parties on the 30th day of July, 1901, the one upon which the present suit is based and that upon which the companion suit, numbered 1,740, infra, also under submission, is based, were parts and parcels of one scheme to evade those provisions of the charter of the defendant city expressly declaring that:

“No contract for removing garbage, sweeping, sprinkling, or lighting the streets, public buildings, places or offices, shall be made for a longer period than one year, nor shall any contract to pay for power, gas or electric light at a higher rate than the minimum price charged to any other consumer be valid.”

“The city of Pasadena shall not be and is not bound by any contract, except as otherwise provided herein, unless the same is made in writing by order of the council and signed by the mayor or by some other person, in behalf of the city, authorized so to do by the council; provided, that the approval of the form of the- contract by the city attorney shall be endorsed thereon before the council shall have power to order the same to be entered, into in behalf of the city; but the council, by an ordinance duly adopted, may authorize any officer, board or commission or agent of the city to bind the city without a contract in writing for the payment for supplies, labor or other valuable consideration furnished to the city in an amount not exceeding one hundred dollars.” Sections 1 and 8 of article 10 of the charter of the city (St. 1901, pp. 911, 912).

The positive prohibition of a statute can no more be avoided by evasion than it can be violated directly. A citation of authorities upon so plain a proposition is unnecessary. So, too, is the law well settled that where, as in the cases between these parties here tinder consideration, the contract upon which suit is brought is forbidden by statute, the acceptance of benefits raises no implication of an obligation. The law is not properly chargeable with the absurdity of implying an obligation to do that which it forbids.

The judgment is affirmed.