241 F. 912 | S.D. Cal. | 1917
Eor a number of years, under a franchise obtained pursuant to the provisions of the Constitution of California as it existed prior to 1911 (see Russell v. Sebastian, 233 U. S.
Complainant is now serving electrical energy to approximately 40,-000 consumers in such city, and the value of its property dedicated and engaged in such public service aggregates several millions of dollars. Its poles, wires, and other instrumentalities have been installed in and upon the streets and other public places in said city under the direction of- the board of public works thereof, the department of the city government having charge of streets and thoroughfares.
The defendant city of Eos Angeles, being authorized so to do under the laws of the state,, is now, and for some months past has been, engaged in the erection, construction, and operation of a distributing system for the distribution and sale of electrical energy to be used for the purposes of lighting the streets and public places in the city of Eos Angeles, and supplying to the inhabitants and others in said city electrical energy for illuminating and other purposes, for a remuneration. On the 7th day of March of this year the defendant city through its duly constituted legislative body enacted an ordinance, the validity of which constitutes the only real question in this case. The purpose and far-reaching effect of the ordinance can be stated in no better way than by a recital of its title and a reference to its material terms. They are appended in the margin.
It is apparent from even a casual reading of the enactment, that, if it be valid, “in order that the municipal electrical street lighting system may be constructed, operated and maintained,” the city purposes, in so far as and whenever the same may be necessary to allow of .the proper installation of the municipal system, to require complainant and other privately owned companies holding franchises and maintain • ing instrumentalities for the transmission and delivery of electrical energy in the city of Los Angeles to remove to such places as may be ordered by the city all apparatus and instrumentalities that may interfere with the proper installation of the municipal system. In other words, the city of Los Angeles having decided, because of reasons which were, no doubt, sufficiently cogent and persuasive, that it would engage in the business of furnishing electrical energy to itself and to its inhabitants, in order that it may proceed in accordance with its own
If it were true that privately owned utility companies were occupying the streets of the city of Eos Angeles to the exclusion of any new entrant therein, and that they were either refusing or were unable ade
“Various persons, firms, and corporations are maintaining in the public streets find other public places o£ said city, poles, anchors, cross-arms, wires, street lamps, and other fixtures, appliances and structures, and. it is necessary, in order that sufficient space may bo secured for said municipal electrical system in said public streets and public places, and that the work of constructing and establishing the same may be carried on, to provide for the removal or relocation of certain of said poles and other properties so maintained by said persons and corporations.”
This language of the ordinance, which no doubt was framed in view of existing conditions, tells its own story in illuminating fashion, and demonstrates that there is no real “public necessity” for the city engaging in the business of furnishing light. The only “necessity” existing is that, in order that the city system may be installed as planned, other systems now in place shall be moved. Indulging in the obvious inferences justified by the language of the ordinance, under the law and from the conditions easily observable, the court must assume, in the absence of evidence of a persuasive nature to the contrary, that with the regulatory powers of the law at hand (Price v. Riverside Co., 56 Cal. 431; Pinney & Boyle Co. v. L. A. Gas Corp., 168 Cal. 12, 15, 141 Pac. 620, L. R. A. 1915C, 282, Ann. Cas. 1915D, 471; Russell v. Sebastian, 233 U. S. 195, 208, 34 Sup. Ct. 517, 58 L. Ed. 912, Ann. Cas. 1914C, 1282; 26 Cyc. 377), the city could compel the companies operating within its confines to furnish sufficient light for its inhabitants at a fair and reasonable remuneration therefor.
In so construing the situation the court conceives that it is giving to the phrase “public necessity” the meaning usually accorded to it when dealing' with the police power. I doubt not that the city has embarked upon the venture of furnishing and distributing electrical energy with perfect and commendable propriety. -I doubt not that after careful and painstaking investigation it has been found that the city may engage in this undertaking with profit to itself and to its inhabitants. I am assuming that, ultimately and in due course, the public welfare and the public convenience and the public exchequer will be augmented by this indulgence in municipal activity. I am simply stating, however, what seems to me to be the obvious, that the motives which prompted this undertaking have been those of propriety and expediency
“Such contracts are not made by the municipal corporation, by virtue of its powers of local sovereignty,, but in its capacity of a private corporation. The supply of gaslight is no more a duty of sovereignty than the supply of water. Both these objects may be accomplished through the agency of individuals or private corporations, and in very many instances they are accomplished by those means. If this power is granted to a borough or a city, it is a special private franchise, made as well for the private emolument and advantage of the city as for the public good. The whole investment is the private property of the city, as much so as the lands and houses belonging to it. Blending the two powers in one grant does not destroy the clear and well-settled distinction, and the process of separation is not rendered impossible by the confusion. In separating them, regard must be had to the object of the Legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political, or municipal character. But if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private company. It stands on the same footing as would any individual or body of persons, upon whom the like special franchises had been conferred." (Italics supplied.)
The doctrine therein asserted and the holding in that case seenj to have met with approval by the Supreme Court of California, as intimated in Davoust v. Alameda, 149 Cal. 69, 72, 84 Pac. 760, 5 L. R. A. (N. S.) 536, 9 Ann. Cas. 847.
If the engaging of the city in the business of furnishing electrical energy to itself and its inhabitants is in all respects a purely private ven
“As between two corporations exercising similar franchises upon the same streets, priority carries superiority of right. Equity will ad.iust the conflicting interests as far as possible anfi control both so that each company may exercise its own franchises as fully as is compatible with the necessary exercise of the other’s. But, if limitation or interference of one or the other are unavoidable, the later must give way, and the fact that it is under contract with the city for work of a public nature does not alter its position, or give it any claim to preference.”
By the same token, the fact that the later corporation is the city itself, instead of being “under contract with the city for work of a public nature,” would create no rights superior to those of the earlier occupant of the field. This case was approved by the same court in Edison Electric Co. v. Citizens’ Electric Co., 235 Pa. 492, 507, 84 Atl. 438. See, also, Bell Telephone Co. v. Belleville Electric Co., 12 Ont. Rep. (Queen’s Bench Div.) 571; Western Union Tel. & Tel. Co. v. Los Angeles Electric Co. (C. C.) 76 Fed. 178.
If, on the grounds of necessity urged, the city could rightfully under the law assert the power to compel the removal and relocation of complainant’s instrumentalities, in order that its own instrumentalities might be installed in accordance with its predetermined plans, it would seem to me to be equally true that, similar conditions of necessity respecting its ability to maintain the system existing, the city could lawfully enact that no resident of tire municipality along the line of its lighting system should be furnished with electrical energy from any system save the municipal system. This would be.a most effective way of furthering the interests and welfare of the city if the success of its municipal system is to be taken as an index of its welfare, but at the same time, obviously, it would be in complete and utter disregard of the rights of complainant and others situated like it. I cannot see, however, that such a course of action would present any substantially different legal problem from that now before the court.
Defendant, in support of its asserted right to enact and enforce the ordinance in question, has cited to the court no case which seems to stand in any wise as a precedent to the action herein, taken. The arguments advanced by counsel are notfpersuasive for the reasons adverted to hereinabove. The cases cited by counsel, however, which it is claimed do lend support to llic contention of defendant, are C., B. & Q. Ry. Co. v. Illinois, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175; New Orleans Gas Co. v. Drainage Commissioners, 197 U. S. 453, 25 Sup. Ct. 471, 49 L. Ed. 831; Union Bridge Co. v. United States, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523, and many other cases of similar trend and nature. Obviously, however, as the merest reading of those cases will show, they announce no doctrine different from that accepted herein, to wit, that a public service corporation like the plaintiff, in the performance of its duty to the public tinder franchise or other similar contract, has no right to any particular location in or upon the public streets or highways, but that it is at all times subject to the police power of the state and subject to such general regulations as may arise from and spring out of the necessities of the public welfare and convenience. Neither of these cases, however, and none that have been cited or to which the attention of the court in its labors has been directed, may be said to go to the extent that a city or other sovereign functionary, having embarked upon a business venture, may assert its sovereign power merely for the purpose of enabling it successfully to install its 'own properties and in violation of superior rights of location belonging to a competitor because of priority of installation.
As indicated hereinabove, assuming the necessity, propriety, and expediency of such course to have been satisfactorily determined by those in authority, i am in entire harmony with a plan of municipal improvement such as has been projected in the city of Eos Angeles and as is here under consideration. I am, however, also firmly of the belief that until the city, by purchase, appeal to eminent domain, or otherwise, has lawfully and properly and justly eliminated competition, it must meet its competitors as any other private agency would he compelled to meet them, and must stand with them in the same relation to the law, and let its success be measured by its ability satisfactorily to serve the public, rather than by its power through the exertion of public functions to occupy a position of supremacy in the field which it deliberately lias chosen to invade.
A decree will be entered, declaiming the ordinance void and enjoining its enforcement.
“An ordinance providing for the removal or relocation of poles and other-properties located in public streets and other public places of the city of Los Angeles, when necessary in order that the municipal electrical street lighting system may be constructed, operated and maintained therein.”
The body of the ordinance then provides that:
“Whereas, the public peace, .health and safety demand the construction and establishment by the- city of Los Angeles of an electrical system, whereby the public streets and other public places of said city may be lighted, and, to that ehd, it is necessary that pole and wire lines, street lamp fixtures, and other incidental appliances, should be installed in the public streets and public places of said city as speedily as may be practicable; and, whereas, various persons, firms and corporations are maintaining in the public streets and other public places of said city, poles, anchors, cross-arms, wires, street lamps and other fixtures, appliances and structures, and it is necessary, in order that sufficient space may be secured for said municipal electrical system in said public streets and public places, and that the work of constructing and establishing the same may be carried on, to provide for the removal or relocation of certain of said poles and other properties so maintained by said persons and corporations. Therefore: The mayor and council of the city of Los Angeles do ordain as follows:
“Section 1. That whenever it shall appear to the bpard of public works of said city that the removal or relocation of any pole, anchor, cross arm, wire, street lamp, or any other fixtures, appliance or structure, owned or controlled by any person, firm or corporation, and located in, upon, over or under any public street or public place of said city, is . necessary in order that the municipal electrical street lighting system of said city, or any part thereof, may be erected, operated or maintained in such public street or public place, then said board shall give notice in writing to the person, firm or.corporation owning or controlling said pole-or other property, located as' aforesaid, to*915 remove or relocate the same; that such notice shall state the number ana location of the poles, anchors, cross-arms, wires, street lamps, or other fixtures, appliances or structures, to be removed or relocated, and, when relocation of any such poles, anchors, cross-arms, wires, street lamps, or other fixtures, appliances or structures, is required in such notice, then such notice shall designate the location In, upon, over or under any such public street or other public place to which the same shall he removed; and it shall be the duty of such person, firm or corporation to begin, within five (5) days after the giving of such notice, the work of removing or relocating the poles, anchors, cross-arms, wires, street lamps, or other fixtures, appliances or structures designated in such notice, and to prosecute such work diligently to completion.
“Sec. 2. It shall be unlawful for any person, firm or corporation owning or controlling any pole, anchor, cross-arm, wire, street lamp, or any other fixtures, appliances, or structure located in, upon, over or under any public street or other public place in the city of Los Angeles, to fail or refuse to begin the work of removing or relocating such pole, anchor, cross-arm, wire, street lamp, fixture, appliance or structure within five (5) days after receiving notice in writing from the board of public works of said city so to do, as provided In section 2 of this ordinance.
“Sec. 3. It shall be unlawful for any person, firm or corporation owning or controlling any pole, anchor, cross-arm, wire, street lamp, or any other fixture, appliance or structure located in. upon, over or under a,ny public street or other public place in the city of Los Angeles, to neglect or refuse, after five (5) days’ notice in writing from the hoard of public works of said city to said ¡person, firm or corporation, as provided in section 2 of this ordinance, to remove or relocate any such pole, anchor, cross-arm, wire, street lamp, fixture, appliance or structure to diligently prosecute such removing or relocating to completion.
“Sec. 4. That any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be punishable by a fine of not more than five hundred*916 dollars ($500) or by imprisonment in the city jail for a period of not more than six (6) months, or by both such fine and imprisonment. •
“Each such person, firm or corporation shall be deemed guilty of a separate offense for every day during any portion of which any violation of any provision of this ordinance is committed, continued or permitted by such person, firm or corporation, and 'shall be punishable therefor as provided by this ordinance.
“Sec. 5. That said board of public works, or the board, commission or officer of said' city having in charge the construction and establishment of said municipal electrical system, shall have power to move or relocate any pole, anchor, cross-arm, wire, street lamp, or any other fixture, appliance or structure, owned and controlled iby any person, firm or corporation in a public street or public place in said city, where such person, firm or, corporation shall fail, within five (5) days after receipt of notice, as aforesaid,-to begin the work of removing or relocating the same, or shall fail to diligently prosecute such work to completion.
“Sec. 6. That said city is now engaged in the construction of an electrical system for lighting the public streets and other public places of said city; that said city has heretofore been compelled to depend on contracts with private utility corporations for furnishing lighting for such public streets and ipublie places and some of said contracts have already expired and all of said contracts will have expired by July 1,1917, and the completion of said municipal system is necessary in order that said city may be able to provide for lighting its public streets and other public places without interruption; that the removal and relocation of certain poles, anchors, cross-arms, wires, street lamps and other fixtures, appliances and structures, owned or controlled by-various persons, firms or corporations and located in said public streets and other public places of said city, are immediately, necessary in order that the city may complete and install its said electrical system; therefore, this ordinance is urgently required for the immediate preservation of the public peace, health and safety; and the city clerk shall certify to its passage by a unanimous vote, and cause the same to be published once in the Los Angeles Daily Journal and thereupon and thereafter it shall take effect and be in force.”