128 P. 19 | Cal. | 1912
The object of this action was to recover the sum of $625 paid by plaintiff, under duress, in discharge of city taxes of 1907, alleged to have been illegally assessed against the defendant upon certain of its property which, it is claimed, was not subject to taxation by said city. The validity of the plaintiff's claim depends on the question whether or not the property was thus subject to taxation. The defendant appeals upon the judgment-roll alone.
The assessment shows that it was made upon property of the defendant described as "franchise of the Postal Telegraph-Cable Company in the city of Los Angeles." Respondent claims that it has no franchise within the city of Los Angeles, except a federal franchise under the act of Congress of July 24, 1866, to operate and maintain telegraph lines over the military and post roads of the United States. *158 It is conceded by the city that the streets of Los Angeles are military and post roads of the United States, that the plaintiff has a franchise from the United States under said act to operate telegraph lines thereon, and that said franchise is not taxable for local, state, or municipal purposes. The position of the counsel for the city is that the plaintiff, in addition to its federal franchise, owns and is in the use of a franchise from the state of California to operate its telegraph lines over said streets, and that it is this state franchise, and not the federal franchise, which is described in said assessment.
If, under the facts as found by the court, plaintiff owns a state franchise in said streets, then, under the decisions of this court in Western U.T. Co. v. Los Angeles Co.,
The finding is that "the allegations of fact contained in plaintiff's complaint are true." It is contended that these allegations of the complaint show that the plaintiff did not own any state franchise, but was operating its lines in the city solely under its federal franchise. This claim is not supported by the allegations of fact referred to. After describing the federal franchise, the complaint alleges that "under and by virtue of such federal franchise, and not otherwise, plaintiff has been for many years last past, was on the first Monday of March, 1907, and still is, constructing and maintaining and operating lines of telegraph through and over the public roads and highways of the city of Los *159
Angeles," that all said lines in said city are maintained and operated only through and over public highways which have been declared post roads by act of Congress, and that "plaintiff has not now, and never had, any franchise of any kind or description for any purpose whatever from the state of California," or from any political or municipal incorporation thereof. The controlling fact here averred is that the plaintiff is, and was at the time of the assessment, maintaining and operating its telegraph lines through and over the streets of Los Angeles. It is now the settled law of this state that the franchise granted by the act of Congress aforesaid does not give the Telegraph Company an unencumbered right to occupy the highways of a state by its poles and wires, but that the right is subject to charges which may be imposed by the state for such occupancy and use of its public ways, and that if the state grants the right to such company to use such part of the highways without compensation, such right is a privilege which is nothing more nor less than a franchise in such highways, a franchise having a local situs and assessable in each city or county in which such highways are situated. (WesternU.T. Co. v. Hopkins,
It is also settled by these cases that section
The judgment is reversed.
Angellotti, J., and Sloss, J., concurred.
Hearing in Bank denied.