13 P.2d 979 | Cal. Ct. App. | 1932
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *735 THE COURT.
An appeal by defendant City of Oakland, a municipal corporation, and certain of its officers from a judgment enjoining the enforcement of ordinance numbered 4240, N.S., adopted October 1, 1928, which required all persons operating electric street-cars within the city to maintain upon each of said cars while containing passengers a motorman and a conductor.
On December 19, 1928, the district attorney of Alameda County instituted a prosecution against the plaintiff and one of its employees, charging a violation of the ordinance in that they operated a one-man street-car on what is known as the "Twenty-third Avenue street car line", which is wholly within the municipality. A plea of not guilty was entered, and the present action was brought to enjoin the prosecution on the grounds that the municipality was without power to pass the ordinance, and that, assuming it had jurisdiction to regulate the manner of operating cars, the ordinance was an unreasonable exercise of the police power.
The material provisions of the ordinance are:
"Section One. Every person, company or corporation operating street cars within the city of Oakland by means of electricity shall provide and maintain upon each of such cars while containing passengers at least two employees, to wit, a motorman and a conductor, during all the time said car is in motion within said city, each of said employees to *736 be an adult not less than eighteen years of age excepting as hereinafter provided.
"Section Two. The council may grant by ordinance permission to operate one-man street cars over such lines and upon such conditions as it may prescribe after an application made therefor."
The trial court found that plaintiff operates a street railway within the municipality and elsewhere in the counties of Alameda and Contra Costa; that its system is a unified service, operating under franchises granted by various cities and towns, and that different traction division lines, of which the line hereinbefore mentioned was one, together with plaintiff's bus lines, transfer passengers to others both within and without the incorporated area served; further that on October 15, 1928, plaintiff filed with defendant city its application requesting authority to continue to operate one-man cars over its Twenty-third Avenue and other lines, which the court found it had been doing for several years previous to the adoption of the ordinance, and that the application was denied on November 13, 1928; that on October 16, 1928, the plaintiff also filed an application with the Railroad Commission for authority to continue such operation, and on November 3, 1928, after a hearing at which defendant municipality was represented, the commission made its order permitting one-man cars to be operated on said Twenty-third Avenue line and other lines of the company. It was also found that on February 17, 1914, pursuant to the provisions of chapter 40 of the Statutes of California, Extra Session 1911, page 163, defendant municipality submitted to its qualified electors the proposition whether it should retain its powers of control over public utilities; that on that date at an election duly and regularly held a majority of said electors voted not to retain such control, but that the same should be vested in the Railroad Commission; and thereafter on February 25, 1914, in accordance with the statute a certified copy of the order declaring the result of the election was duly filed with the commission. The trial court concluded that jurisdiction to regulate the operation of railways within the municipality vested exclusively within the Railroad Commission; that the regulation of plaintiff's lines was a general, not a local matter, and that consequently the ordinance was *737 void. The court expressly declined to pass upon the second objection made to the validity of the ordinance.
[1] Defendants contend, as stated in their brief, that "the provisions of sec. 23 of art. XII of the Constitution of the State of California (prior to its amendment in 1914) and the `Hewitt Act' (chap. 40, Statutes, Extra Session 1911) cannot be held applicable to cities operating under freeholders' charters; in other words, they were designed and intended to apply to all cities other than those having freeholders' charters," and that "sec. 23 of art. XII of the Constitution, even though by its provisions specifically declared not subject to or limited by any other provision of the Constitution, is nevertheless limited by secs. 6 and 8 of art. XI thereof relating to charter cities." Said section 23, as amended October 10, 1911, provided that the Railroad Commission should have such power to regulate public utilities as should be conferred upon it by the legislature, authority to confer such power being declared therein "to be plenary and to be unlimited by any provision of this constitution"; and that after the passage by the legislature of laws conferring powers upon the commission respecting such public utilities all powers respecting such public utilities vested in municipal councils or other governing bodies of the cities of the state existing at the time of the passage of such laws should cease so far as such powers conflicted with the powers so conferred upon the commission.
The section contained the provision that "this section shall not affect such powers of control over any public utility vested in any city and county or incorporated city or town as, at a general election to be held pursuant to the laws to be passed hereafter by the legislature, a majority of the qualified electors voting thereon of such city and county or incorporated city or town shall vote to retain, and until such election such powers shall continue unimpaired; but if such vote so taken shall not favor the continuation of such powers they shall thereafter vest in the Railroad Commission as provided by law".
Section 82 of the Public Utilities Act contains the same proviso; and it has been held that as the result the powers of control over existing public utilities vested in any city *738
were still retained and did not pass to the commission until at an election held for that purpose pursuant to the statute the qualified electors of the city voted not to retain such powers (Title Guarantee etc. Co. v. Railroad Com.,
The charter of defendant city grants to the council the power to regulate utilities within the municipality; and it has been held that the provisions of section 8 of article XI of the Constitution with regard to the amendment of freeholders' charters are exclusive (Blanchard v. Hartwell,
Defendants contend that to give effect to section 23 of article XII and the Hewitt Act, where a municipality is operating under a freeholders' charter which grants power to its governing body to regulate public utilities, would result in an amendment of the charter in a manner not sanctioned by the Constitution. But section 23 makes provision for the surrender for a specific purpose by the act of its qualified electors of a power vested in a municipality, no distinction being made between cities organized under general laws and those operating under freeholders' charters; and it is manifest from a reading of the two sections that it was not the intention to use the comparatively cumbrous procedure provided for the amendment of charters in ordinary cases rather than the more direct method of determining the will of the electors as provided by section 23. That such was the fact was assumed, if not decided, in the following cases: Oro Elec. Corp. v. Railroad Com.,
A special provision on one branch of a subject controls a general provision relating thereto, and will prevail in its application to the subject matter so far as coming within its particular provisions (Bateman v. Colgan,
[3] Constitutions, like statutes, are to be considered prospective and not retrospective in their operation unless a contrary intention clearly appears (5 Cal. Jur., Constitutional Law, sec. 12, p. 561). As is said in Cooley on Constitutional Limitations, "this rule is one of such obvious *741 convenience and justice that it must always be adhered to in the construction of statutes unless in cases where there is something on the face of the enactment putting it beyond doubt that the legislature meant to operate retrospectively. Retrospective legislation, except when designed to cure formal defects, or otherwise operate remedially, is commonly objectionable in principle and apt to result in injustice, and it is a sound rule of construction which refuses lightly to imply an intent to enact it; and we are aware of no reasons applicable to ordinary legislation which do not on this point apply equally well to constitutions".
[4] As stated, the trial court found in effect that the plaintiff's traction lines constituted a unified service extending and operating through several cities and counties, and the question whether one-man cars should be operated thereon was not a municipal affair. Whether a surrender of powers previous to the constitutional amendment of 1914 resulted in a relinquishment of all power to make and enforce local police and sanitary measures affecting the health or safety of the general public which might incidentally or indirectly affect the acts of public utilities we need not decide, for while it appears to have been taken for granted in the following cases that an order by the commission within the powers conferred upon it by the Public Utilities Act controls, without regard to the question whether the matter sought to be regulated constituted a municipal affair:Oro Electric Corp. v. Railroad Com.,
In the case last cited it was held that the regulation of traffic upon the streets of a city is not a municipal affair within the meaning of section 6 of article XI of the Constitution; and in In re Murphy,
In City of Los Angeles v. Central Trust Co., supra, at page 327, it was said that "the opening, laying out and improving of streets within a city and the regulation of the manner of their use, are matters of much greater concern to its inhabitants than to the people of the state at large, and they are clearly municipal affairs . . .", citing Sinton v. Ashbury,
The further claim was made by plaintiff that the ordinance is unconstitutional in that it deprives the company of its property and the use thereof in violation of the fourteenth amendment of the federal Constitution; and this contention finds support in the recent case of Shreveport Rys. Corp v. City ofShreveport, 37 Fed. (2d) 910; 38 Fed. (2d) 945;
The judgment is affirmed. *744