Southern California Gas Co. v. City of Los Angeles

Cal.2d 679 The conduct at- district torney in respect present this subject case is same criticism and should not taken in con- place, have but seriously repre- sideration of the entire record it was not so require hensible as to a reversal. part Other claims of misconduct on of the district at-

torney are without merit. The defendant received fair and impartial trial, support and the evidence in of the verdicts overwhelming. stated is presented ap- The record herein pears to provisions of be the to be first reviewed this court wherein the applied.

section 190.1of the Penal Code have been correctly trial court provisions followed the of that sec- doing tion. In deprived any so right, defendant was statutory, constitutional or to which he was entitled at time the offenses were committed. judgment denying and order the motion for a new trial

are affirmed. Gibson, J., Carter, J., C. J., Traynor, Schauer, J., Spence, J., McComb, J., concurred. Appellant’s petition rehearing for a September was denied ' 17, 1958. Aug. No. 24909. 29, 1958.] Bank.

[L.A. (a SOUTHERN Corpora- CALIFORNIA GAS COMPANY tion), Respondent, Ap- ANGELES, CITY OF LOS pellant. Roger Arnebergh, Attorney, Bourke Jones, Assistant City Attorney, and Claude E. Hilker, Deputy City Attorney, for Appellant. Harold Kennedy, County W. (Los Counsel Angeles), and Gaylord, Deputy

Edward H. County Counsel, as Amici Curiae on Appellant. behalf of T. Reynolds, J. Rice, L. T. Allen Cleveland, L. Salter, C. R. Booth,

Bates Arville Armstrong, Jr., A. and Gertrude Green- gard Respondent. Gibson, Dunn Crutcher, & Norman Sterry, S. Ira C. Powers, Whelan, Martin Jr., E. F. Searls, Sloane, T. P. E. W. E. Johns and R. A. Clarke as Amici Respondent. Curiae on behalf TRAYNOR, The city Angeles J. of Los constructed the Ciénega La and San Fernando part Relief Sewer as of a sewer program. construction A short of this sewer section line County strip of known as the

passes under a narrow land unincorporated Strip in an limits located outside county Angeles. To construct the sеwer area of the of Los necessary gas to lines of the Cali- it was relocate Southern Company. company agreed gas to its relocate fornia Gas County Strip subject a later determination lines in the obligation expense. its so its own It conceded of its to do at expense obligation at within the to relocate its lines its own obligation the same with city limits but that it had denied County Strip. After the respect its lines located against completed brought this action work was County Strip relocating incurred the costs recover $12,003.92 plus judgment for interest. lines and recovered city appeals. county pursuant lines in located disputed franchise is not that this franchise. It Constitu contract United States constitutes secured legislation (see against impairment subsequent state tion County Angeles Co., Tel. 32 Cal.2d v. Southern Cal. rights company’s there 378, 773]) that the use without damaged hot under can be taken 14; making just compensation. (Cal. Const., I, art. U.S. § Sebastian, 233 U.S. 195 Const., 14, 1; Amend. Russell § 882]; United States 1918E 58 L.Ed. L.R.A. S.Ct. Peta Brooklyn 391, 394; Co., 168 F.2d Gas Union 284, 288 luma v. & Tel. Cal.2d Tel. Pacific necessary what those Accordingly it is to determine rights are. provision contrary

In the absence of it has generally public utility accepts been held that a franchise subject implied obligation to an necessary relocate its facilities therein at its own when way proper governmental for a to make use of the streets. (New Drainage Com., Orleans v.Co. 197 U.S. Q. Chicago 461-462 49 L.Ed. & Rail B. Illinois, Long Co., Transit Com. v. Island B. 253 345 N.Y. N.E. [171 565, 566]; Commonwealth, Bell Southern Tel. & Tel. Co. v. (Ky.) 308, 310; ‍​​‌​​‌​​​​​​‌‌​‌‌‌‌​‌‌‌​‌​‌​‌​​​‌‌​​‌‌‌‌‌‌​​‌​​‌‍266 S.W.2d Southern Bell Tel. & Tel. (Fla.) 800; State, 796, Western Gas 75 So.2d Co. City Washington Bremerton, v. 21 Wn.2d 907 [153 of of 846, Com., 119 847]; re Delaware River Joint 342 Pa. [19 Gaslight Natick, 278, 280]; A.2d v. Inhabitants Natick Co. of N.E, Opinion 293]; Justices, 246 292, 175 Mass. [56 of

717 - - 443]; Opinion 440, Me. A.2d the Jus [132 of tices, 614].) 613, laying -N.H.- A.2d [132 of governmental proprietary sewers is as distinct from a (Detroit foregoing function rule. Edison Co. v. City Detroit, ; 245, 332 348 N.W.2d Mich. [51 247-248] of Sewerage Louisville Gas & Electric Co. v. Commissioners of of Ky. Louisville, 344, ; 236 376 Nicholas Di S.W.2d [33 344-345] City York, 350; Menna & New 347, Sons v. 114 N.Y.S.2d 1004, & 84 Giebisch, Portland Gas Coke v. 632 P. Co. Ore. [165 City ; L.R.A. 1917E Antonio Antonio San v. San St. 1092] Ry. App. 136, ; 15 Tex. 1 S.W. Anderson v. Civ. 138] [39 Fuller, Am.St.Rep. 688, 170, 51 Fla. 380 6 684, So. 120 [41 City ; National Water-Works Co. v. Kan L.R.A.N.S. 1026] sas, City Angeles Angeles 28 F. Los 922-923; cf. Gas Corp., & 251 39-40 64 L.Ed. Elec. [40 Speeth Carney, ex rel. Ohio State 163 St. 159 [126 City County 449, 460]; N.E.2d Tel. Cable & Postal Co. Francisco, Cal.App. 1108].) San 53 192-193 P. [199 Highway Com., Panhandle etc. Co. v. 294 U.S. State [55 contrary, is for in that 79 L.Ed. utility’s private right involved, case the not its right to use the streets. company contends, however, any implied obli gations county in its franchise to relocate its cannot be invoked the benefit of operating outside its terri agree torial We limits. cannot with this contention. Such obligations paramount rest on the people of as a whole to use the located, wherever and the granted fact franchise political is one subdivision agent an (see of the state San Francisco-Oakland Terminal Rys. County Alameda, Cal.App. 77, P. City Water Cо. v. Belfast, 92 Me. A. Belfast 237]) does not defeat the agent of another such acting governmental capacity public right to invoke the (First benefit. Bank Nat. Boston Turn v. Main pike Auth., 153 Me. 699, 711]; A.2d San Metropolitan Antonio v. (Tex. Bexar Dist., W. App.) Civ. 491, 493; Seymour, S.W.2d Cummins v. 71 Ind. Am.Rep. 618, 623-625]; New Orleans v.Co. Drainage Com., 111 La. 929, 933]; So. see Gadd v. McQuire, Cal.App. 347, 358-359 city’s fact use streets for its sewers is authorized section 10101 of the Public has Utilities Code no bearing applicability foregoing on the It rule. 718-’ municipal granted corporations

true that to subject that section have been held to constitute franchises paramount right to of safe for the state to make the streets public 699, (State Dist., 17 Cal.2d travel v. Marin Mun. W. fran that a 651]), 703-704 P.2d but it not follow -does [111 city governmental capacity under chise exercised in its prior granted to that section is to a franchise subordinate public utility utility. Marin case was The involved in the capacity. municipal operating proprietary in a district water Co., 152 City (See South Pasadena Pasadena Land etc. v. of case, on present 579, 490].) Cal. 592-593 P. [93 important exercising of its most hand, the other is one of governmental important it is one that powers, so limits powers the few it outside of its territorial exercise Court, Superior (Harden express without v. authorization. City San 630, Mulville Cal.2d 638-639 :9] [284 of City Diego, McBean v. 183 Cal. P. 702] of Am.St.Rep. 191, 31 Fresno, 358, 53 112 Cal. P. City City Fritz, 33 Cal.2d 794]; see also National L.R.A. City Black, 181 Cal. Madera v. 7]; recognized and itself 312-313 The Marin case P. utility’s rights applied rule that established right paramount subject are taken streets applies between rule travel, above, and as the same stated using the municipal corporations streets utilities and purposes. for sewer company however, express contends, terms obligation franchise define its to relocate its lines implication any

at its own and that clear other obligations similar excluded. Section 8 of its franchise provides County Angeles that “the of Los reserves the any change grade highway over which this franchise grantee granted, franchise, said successors or change assigns, once of all shall at the location and other ’’ change grade. appliances hereunder to conform to laid obligation contends that the recital of the relocate grade gas changes of does exclude other im- lines any attempt plied obligations to relocate lines and obligations of such would be invalid. relieve the municipal corporations require utilities governmental uses relocate their lines to make resting usually has been described as frequently been stated this context power, and has away. (National bargained Water cannot be City City 921, 922-923; Kansas, Works Co. F. App. & Tel. Macon v. Southern Bell Tel. Ga. Belfast, 275]; Water S.E.2d Co. Belfast City Ry. Me. 52 A. Louisville Ky. (8 422-423; & Louisville, Bush) 415, Scranton Gas 71 84, 85, City Scranton, 214 586 A. Water v. Pa. Co. [64 of Commis & Electric Co. v. ; 6 Louisville Gas L.R.A.N.S. 1033] Ky. Sewerage Louisville, 376 S.W.2d sioners 236 [33 of of 344, 344-345]; see New Orleans Drainage Co. Com., v. 453, 197 471, 460 49 L.Ed. 831].) S.Ct. Given, [25 municipal power however, the to vacate or acquire usually in them lesser interest first instance than is public (see Pennsylvania obtained Mahon, Coal Co. v. 158, 322, 393, 260 U.S. 416 67 28 ; A.L.R. [43 1321] City Detroit, Detroit Edison Co. v. 332 Mich. 348 N.W. [51 of 245, appear 247-248]), there principle 2d would to be no basic prohibit granting utility right that compensation would to relocating part of although for its lines as its franchise such right ‍​​‌​​‌​​​​​​‌‌​‌‌‌‌​‌‌‌​‌​‌​‌​​​‌‌​​‌‌‌‌‌‌​​‌​​‌‍pass. would not otherwise support This view finds Legislature holding may provide cases that the for such com (In pensation. Place, Borough re Gillen Brooklyn, 304 ; 215 N.E.2d 897, N.Y. Baltimore Gas & Electric [106 900] Com., Co. State Roads 214 312, ; v. Md. 266 A.2d [134 315] Philadelphia Pennsylvania W. Co. Sub. P. Com., U. 168 Super. 46, Opinion ; Justices, Pa. A.2d [78 51-52] - - 440, Opinion Me. ; A.2d the Jus [132 443] tices, 613, 614-615]; -N.H.- A.2d see Columbus City Gaslight & Columbus, Coke Co. v. 50 Ohio St. 65 [33 292, 293, Am.St.Rep. 648, 510].)* N.E. 19 L.R.A. Per haps apparent this can theory conflict be reconciled on the Legislature may that a granting state authorize franchises compensation utility right relocating to its lines to governmental uses, make but that it will not be held delegated power political to have such to a subdivision express language unnecessary absence to It is effect. determine, however, empowered whether the grant including compensation a franchise here sought, properly interpreted for we have concluded that company’s right. no franchise included public grant As a is to franchise be construed in question *It should noted that be we are not here concerned with the Legislature grant rights additional accepted by utility problem franchise after it has been and the thereby possible gift that would be raised of a funds. (Knoxville v. Knox favor of the interest. Water Co. County ville, ; 200 U.S. 33-34 50 L.Ed. 353] Angeles Co., Los Cal.2d v. Southern Cal. Tel. ; City & Electric Sacramento Gas 773] Pacific 1069.) Its ; Cal. P. Civ. Code § 978] hereby and provide granted terms each own it “is strictly every contained, herein and shall ever be con condition assigns. against grantee strued and its successors and pass granted plain Nothing hereby shall unless be unambiguous expressio ex- terms.” maxim unius plain clusio alterius est cannot be invoked make unam biguous compensation seeks. parties’ express recognition of the rule of Given the strict against paragraph 8 reason grantee, construction cannot expression ably interpreted being partial than more obligations (City parties’ common-law Glendale, Angeles 23 Cal.2d Beach, Long Improvement Strand 975]) out of an abundance Cal. inserted 772-773 P. Lexington by way only. (City example of caution or Bank, App. 1095, ; 130 Mo. 687 Commercial S.W. 1096] [108 Georgia Leonard, 579, 608 S.E.2d Power Co. v. 187 Ga. [1 Islands, 189, Philippine ; Springer 277 U.S. see also v. 581] 206 Dickey 480, ; Raisin Proration 72 v. L.Ed. 845] [48 505, 157 A.L.R. 796, 811 P.2d 1, Zone No. 24 Cal.2d [151 pointed Appeals York has Thus, New Court the express provisions dealing despite the existence out respect utility’s obligations streets “The with to the with the people the are is to assume that not reasonable construction ... necessity re any than heavier be burdened with corporations to relieve the service quires, and liabili having streets of their common-law franchises the only taxpayer be accom pass them over to can ties the and Legislature.” (Transit by express plished the direction Long 253 N.Y. 345 N.E. v. Island R. Commission [171 Authority ; v. Consolidated also New York Tunnel see 568] Chicago 445, 448-449].) Co., 295 N.Y. 467 N.E.2d Edison [68 ex (U.S.) 594], State rel. Sheldon, 50 9 Wall. [19 Ry. Co., Corrigan 263 Street Mo. Kansas v. Consol. Corrigan, Mo. Am.Rep. 361], City Kansas [55 Jury, 225 La. 531 Police Union Tel. Co. v. and Western contrary. The first three these not to the So.2d streets, but competing uses of the the involved, not cases repave duty repair streets, the utility’s and extent of franchise, and express by terms matter covered interpretation in accord was court’s case the Sheldon the franchise рlaced on practical with the construction competing use parties. ease, In the fourth contemplated have been highly that it was so unusual could ease, accepted. present In the at time the franchise clearly for sewers was contrary, on use of the streets utility’s obligation to relo- common-law anticipated, to be has at all times been pipes to that use accommodate cate provision in is no recognized by law, there clearly obligation giving abrogating that company’s franchise right to costs recover the relocation. it the trial court judgment with is reversed directions city. judgment the defendant to enter concurred. J., J., Spence, J., Gibson, Shenk, C. Although I agree with the Concurring.

CARTER, J., opinion prepared Mr. Justice conclusion reached regret my stated, I inabil hereinafter Traynor, for the reasons join opinion. ity said

My respect applicаtion views with I, article section ordinary Constitution California to the situation private property damaged in which has been taken or for a public use, many have been stated times majority, both opinions dissenting concurring I which have written as a (Rose State, of this member court Cal.2d 713 P.2d Control, 505]; Bacich v. Board 23 Cal.2d 343 P.2d Angeles, Archer Cal.2d 29 [119 Angeles County ; Flood Dist., P.2d O’Hara v. Los etc. 1] ; Angeles County 61, 64 P.2d House v. Los Cal.2d 23] Dist., Flood Control Cal.2d Board, Clement Reclamation 35 Cal.2d v. State 897]). It in all of will be noted that the cases above position agency it was the which took the cited damage taking thereto, that the or dam or caused police power aging reserved to the state was done under XI, political 11, of the article section subdivisions agree conten I with this Constitution California. did was my position regard same now as it in this is the tion, and member of I have been a This is first case since then. power police doctrine my court, which, opinion, this review presented. A applicable case the facts in the of confusion of the cases reveals state above-cited respect minds of some members of this court with to the police power situations in may which the doctrine be invoked political the state or a take, damage subdivision thereof to destroy private payment compen without the sation therefor in I, contravention of article section of the (See State, Constitution of supra; California. Rose v. Bacich v. Board Control, supra; Angeles, Archer v. Los supra; Angeles County v. Dist., supra; O’Sara Los Flood etc. Angeles County House Dist., v. Los Flood Control supra; Clement Board, supra; Reclamation Beals State People Angeles, Ricciardi, Cal.2d 381 P.2d reading 23 Cal.2d 390 A of the last-cited including dissenting concurring opinions cases therein my respect truth demonstrates the statement with confusion whiсh has existed the minds some members of attempting distinguish involving this court in cases application I, (eminent domain), of article section application XI, involving Constitution of article and eases (police section power), of the Constitution California. opinion prepared by Traynor in this ease Mr. Justice confusion, to that fails between adds as he to differentiate powers granted political to the state and its subdivisions provisions. under the last two cited constitutional opin Said present ion “In states: ease, on the other hand, exercising important governmental one its most powers, power important so powers that it is one of the few it exercise outside of express its territorial limits without auth ’’ orization. Superior He then Court, cites Sarden 44 Cal. 2d 630 involving power which is a case emi nent domain. Later in opinion, his he states: “The municipal corporations require utilities to rеlocate their governmental lines to make uses of the streets has usually resting been power, described as in the frequently has police power been stated in this context that the bargained away.” cannot be correctly The cases he cites here apply doctrine. opinion, Traynor said Mr. Justice also discusses the Legislature provide payment compensation in eases such as this, proposition but this is not involved here because it is Legislature conceded that made provision. no This discussion is therefore obiter dictum. really There is no need for the confusion which now exists of this decisions court which have had occasion apply I, article section XI, and article section 11,

723 as particular factual situations to of California Constitution do power of eminent the between distinction there is a clear pro by constitutional granted said main the thе where twilight zone ais true that there be visions. It power of of the exercise the between line of demarcation power is diffi of the exercise and the eminent domain pronouncements very clear in discern, to but view cult field, this in this States United Supreme Court predilection say notwithstanding my this, a I not such case. Supreme reading the decisions hold otherwise before applicable to this the facts of case. Court of the United States (New Gaslight Drainage Com., 197 453 Orleans Co. U.S. Chicago, Burlington ; etc. R. 471, 49 R. S.Ct. L.Ed. [25 831] ; Chicago, L.Ed. Co. Chicago S.Ct. U.S. 979] Ry. Commrs., 200 Illinois U.S. 561 B. & O. New York & N. Railroad S.Ct. 50 L.Ed. E. Co. 269]; ‍​​‌​​‌​​​​​​‌‌​‌‌‌‌​‌‌‌​‌​‌​‌​​​‌‌​​‌‌‌‌‌‌​​‌​​‌‍Bristol, 437, 38 L.Ed. Butchers’ 151 U.S. 556 S.Ct. Co., Union etc. Co. Crescent etc. U.S. 746 Mississippi, ; Stone v. U.S. 814 L.Ed. 585] Light etc. New Orleans Co. v. Louisiana 29 L.Ed. view very simple of these case which decisions, we have here opinion disposed from the confusion should be an free permeates many of the other decisions dictum which clarity only, in I have this court this field. For sake disposes preparеd opinion correctly an states and which the rules of law as issues this case accordance with Supreme declared applicable United States Court presented the factual here. situation municipal corporation, city Angeles, a Defendant, of Los plaintiff, appeals judgment awarding compensation from for its costs corporation, Company, California Southern Gas agreed an relocating gas tried on The case was lines. statement of facts. hereinafter Angeles, referred as city,

began program, parts sewer construction one of main Ciénega which was the construction of “La and San ’ ’ Valley sewage Fernando Relief This sewer Sewer. carries Valley spot to a Cienega from the San Fernando near La Hyperion disposal plant Boulevard where meets with the portion passes A of this sewer line line. small under narrow Strip strip County of land known which is located out unincorporated an side the but within area in the limits Angeles. portion proposed o£Los A sewer route underlying public County Strip occupied gas lines of Company, the Southern California Gas here company. inafter company agreed called to relocate gas County Strip lines to make the sewer subject mains obligation to a later determination of its to do so expense. company at its own obligation The conceded its expense to relocate its lines at its own within the limits but obligation respect denied that it had the with same its County Strip. Judgment lines in located rendered plaintiff favor together $12,003.92, the sum of per with interest thereon at the cent March rate from city appeals. 1955. The city argues public utility, that a such as plaintiff, is obligated to relocate at its own its facilities under- lying public unincorporated portion an streеts within of the public improvement being for a to make installed by city. major therein points here involved are whether the installation and maintenance of sewers a mu- nicipality protection public health is an exercise - police power police power whether the of the state is being by municipality exercised when constructs con- necting beyond boundaries; its the reloca- sewers and whether gas lines, company’s tion of expense, at the constitutes tak- ing private compensation within the without meaning prohibitions. of the constitutional

There can be no doubt at this time but that the installation and maintenance sewers public interests of the health by municipality is an power. exercise Harter Barkley, 742, 744, Cal. P. it was regulation held that “The of laying sewers in unquestionably power streets is upon conferred municipalities, partly by provisions virtue of the of section 11 of аrticle XI of the constitution of proper California. The protection depends very largely health upon thorough sanitary maintenance of system. and sewer . . . It has held, very been and we think properly, that ordinances municipal corporation of a providing for construction, repairs maintenance, and and drains are sewers to be sus- police power.” tained as a “Regulation by valid exercise of conveyance ordinance of methods and devices for the of sew- age private dwellings municipalities from recognized as an police power pertains exercise of branch which (In Nicholls, Cal.App. health. ...” re Angeles, ; and see Sullivan P. Cal.App.2d 807, 811 exercising that it is contends beyond its boundaries constructs sewers the state when it Public 10101 of the so section is authorized to do that it 10101, Public city charter. Section Utilities Code and every munici- granted to prоvides: “There is Code, Utilities operate, construct, pal corporation of the State conduits, electric gas pipes, mains and and maintain water and telegraph lines, sewers telephone and light lines, across, necessary appurtenances, mains, all with and sewer avenue, any street, alley, road, over, or along, in, under, any canal, railway, over under, or across, highway, intersects, works of such the route or flume which ditch, security for manner to afford along, runs crosses, or property.” life and provides (§2(6)) that the Angeles Charter The Los enforce within empowered “To make and city shall be and other sanitary, safety, welfare local, police, limits all such general laws, and to with not in conflict regulations as are manner as its limits in such jurisdiction outside exercise such (Emphasis added.) by law.” authorized City Diego, 734, 737 183 Cal. San [192 In Mulville v. competent municipality is a general, “In 702], it was said: P. it only in those cases which beyond boundaries to act its authority necessary, it and is by legislative empowered is so in municipality per validity of a of acts passing the general laws and the boundaries, to look to beyond its formed authority. in In certain requisite municipal charter the expediency or extreme urgency of owing the stances, power and the authority dispensed with express necessity, beyond bound its municipality perform certain acts of the powers of other existence implied to the ary is as incidental a that, where held has been expressly granted. Thus it municipality power sewers, has to construct it as an may, beyond implied power, extend the same incident to such its necessary manifestly (McBean desirable. boundaries when Am.St.Rep. City Fresno, 112 31 Cal. 159 L.R.A. v. [53 City Tucker, 474; 358]; Coldwater v. 36 Mich. 794, 44 P. Village Ridge, Park 138 Ill. 295 N.E. Cochran v. [27 ” (Ebrite Municipal 1434.) McQuillin Corporations, sec. 4 on 937]; In re Crawford, 728-729 Cal. Raynor 291, P. Blois, 179 Cаl. Blois, 1054].) In In re 11 Cal.2d Arcata, “disposed we were 449], we said that 179 Cal. P. municipalities exercise agree” concede that and “to possession and exer powers when the certain extraterritorial of the proper conduct powers are essential cise of such has example, this court municipality. As for affairs maintain power and municipality to construct has held that the its boundaries system outside of of waterworks go might even supply water, with of its inhabitants the living without persons supplying water to to the extent Pasadena (South municipality. Pasadena limits of such ” P. Land etc. 152 Cal. clearly appears city exercising police It that the was the express grant power power of the state as set forth augmented Public in by the Utilities Code section. provisions and, own charter that even of its had there the express grant authority power, an the would not been such implied nature of work undertaken from the power. question no but There can be that it was system city’s sewage disposal with imperative connect disposal plant an Hyperion and that such exercise by necessary it, with would have carried the implication, making power its boundaries to act without Fresno, As we said McBean connection. Am.St.Rep. 191, L.R.A. 358, 53 159, 163 Cal. P. system sewage outside disposition of the outfall where day “Proper this city involved, sewers limits municipality, of a hygiene and sanitation essential to the so to construct look to see whether would not court charter, but granted had been maintain them by possibility power had been only see whether rather expressly denied.” company city that the has neither a contends contrac- police power, compel utility right, nor the to relocate tual compensating utility pipes when both the without utility sewage system are without argues that franchisе from limits. The only rights in it and contained one vested certain bearing the of relocation of its

limitation—that of county changed grade any if highway. lines the the words, other is that it contended its fran- the by chise from the are reason of the contract and are only by the terms of the city, limited contract. The on the by public utility hand, other maintains the use public public use; streets subservient to the is if the a city, would mean that or company’s argument had merit it impair its county, or surrender fundamental could upon case of New power by The relies the contract. Drainage Com., Gaslight 197 U.S. 453 Orleans support position. its The 831], in 471, 49 L.Ed. said; plaintiff the in “It is contention of there the court acquired and availed itself having franchise that, error the city, of the pipes under the streets to locate the cannot be taken thereby acquired which it has pipes from their by shifting its mains and it of some of from drainage without com system, to the location accommodate changes. is not It contended pensation cost of such for the property right as acquired such a gas company has that the Drainage Commission, exercise of the prevent the will removing the by State, the from police power granted to it work, it is insisted that room for its but compensation pipes so as make for the only terms can be done this States, Supreme Court of the United cost removal.” v. Louisiana Co. speaking of the case of New Orleans 252, 29 Light etc. to use the “Except privilege the was conferred said: places thereunder, there laying in some the intention grant to indicate nothing terms public cer up streets, give control of the State tainly required proper might power far as such not so purposes legitimate con their use regulations to control ’’ safety. public quoting And, nected with the and from health “ prohibition ‘The case, the sаme upon it was said: constitutional impairing obligation contracts does not state laws protect public power health, restrict State public public morals, or as the one or the safety, other Rights contracts. be involved the execution privileges arising from with State contracts subject regulations public health, protection for the sense, in the same morals, safety, extent, property, all and all same as are contracts ’ ” persons corporations. whether owned natural ‘‘ court drainage further of a said: in the interest of the purposes important health and one of welfare is the most for which the can be exercised. The Drainage Commission, carrying important out work, this Supreme has been engaged held State, Court is police power in the execution of the “It State.” And admitted that the exercise of this there has been no more interference property with gas the company the than has necessary been carrying to the out drainage of the plan. There showing is no property that the value of the gas the company depreciated has been nor that it has suffered any deprivation further than the which was rendered necessary by changing pipes the location of the accommodate the work of Drainage Commission. The police power, insofar as its exercise is essential to the health of the community, it has been away. held cannot be contracted New York & N. E. Railroad v. Bristol, Co. 151 U.S. S.Ct. 269]; 48 L.Ed. Butchers’ Union etc. Co. v. Cres cent etc. 111 U.S. 28 L.Ed. Mississippi, Stone v. 1079], L.Ed. large In a city like Orleans, New is, situated as it and the entrepot of an extensive coming many commerce foreign from countries, highest importance public health safeguarded shall by proper be all means. It would be suppose grant unreasonable to gas in the to the company right laying use of its pipes it was impair public ever intended to surrender right discharge duty conserving health. gas company acquire any specific did not location in the streets; general right it was content with the them, to use pipes and when it they might located its it was at the risk that be, at some future time, disturbed, might when the State re quire necessary public for a changes use that in location be made. . . . occupation “The need of of the soil beneath the streets constantly supply cities is increasing, for the of water and

light and systems sewerage the construction of and drain every age, public policy requires grants reason of subject such sub-surface shall be held to such regulation safety may reasonable as the health and require. nothing grant gas company, There is in the to the legally undertaking even it done, could be limit if system drainage State to establish the streets. We think gas acquired whatever was sub ject pipes concerned, insofar as the location of its to such regulations might required future in the interest of the amply health and welfare. These views sustained (Emphasis added.) Speaking the authorities.” of Chi cago, Burlington Chicago, 226, etc. R. R. 166 U.S. the court said: “In the latter uncompensated ease it was held that regulation obedience a police power of the public safety under the enacted for the compensation. In taking without due was not State company, gas case. The all there is to this view, our that is right acquired no exclusive grant city, from the it, as chosen streets, location of its city made authority grant to use streets. general be disturbed police power gas company should not no contract that exercise the location chosen. promotion necessary highly purpose State, of for a the necеssary change the to public has become health, company to accommodate pipes gas so as the location of require- complying public with this the new work. In them to gas com- property of the ment at its own none injury damnum pany sustained is taken, the has been and injuria.” absque Company argues gave that its rights franchise it vested away payment compensation.

which taken cannot be without of In Sebastian, 195, Russell v. 233 517, U.S. 204 58 S.Ct. upon 882], by company L.R.A. 1918E relied L.Ed. in support gas contention, company operating of a a provision sought lay of of the Constitution California addi by tional in streets not theretofore used it. The Angeles, ordinance, prohibited, Los in effect, the use the company Supreme of the streets theretofore not used it. The grant gas company held that the which Court resulted acceptance from an of the state’s offer constituted contract cоmpany property right “protected by in the and vested the open dispute [is], Federal Constitution view the municipal repeated of this court.” The effect the decisions away gas from ordinance company the Russell case was to take the right to mains and lines into additional extend its people. provide service to the streets in order to additional rights No such involved the ease at bar. We are here merely concerned with a existing relocation of lines in order sewage system make for a being constructed for the public. benefit of company’s the property right vested here is to continue its some, lines and installations at rather than a specific, public By location within the streets. relocation, property not, meaning “is within the of the Con public stitution, use, deprived taken for nor is the owner of it process Q. without (Chicago, due of law.” & R. Co. v. B. Chicago, U.S. S.Ct. 41 L.Ed. Chicago Q. Ry. Illinois, B. & Co. v. U.S. “recognized 596], L.Ed. the court ‍​​‌​​‌​​​​​​‌‌​‌‌‌‌​‌‌‌​‌​‌​‌​​​‌‌​​‌‌‌‌‌‌​​‌​​‌‍said that it had principle injury may private

the property often come to legitimate governmental reasonably the result of action, public good taken for yet for purpose, and no other taking there will property meaning be no of such within the deprivation guaranty against prop- the constitutional erty process against law, taking without due private property compensation. for use without To belongs think, this class recent, and as we decisive case Drainage And, New Orleans ...” Commission. pages 609, 610, “Upon general subject at there is no real among adjudged conflict Whatever cases. conflict there question arises whether there has been or will be particular case, meaning within true Con- ‘taking’ private property stitution, a use. If injury complained only legitimate of is incidental governmental powers good, exercise of then there taking public use, is no for the compensation, injury, on account of such not attach under does the Constitution.” support argument of its that its vested impaired compensation cannot be without also cites Angeles Angeles ease v. Los Gas & Elec. Corp., that “A conveys rights, franchise if their pre exercise could be destroyed by simple

vented or municipal declaration of a council, they would be infirm indeed tenure and substance. is they It compact, to be that remembered came by into existence having, reciprocal therefore, urged by its sanction, benefits, only by attended and can be exercised ex penditure making of money, them a matter investments and against property, being and entitled as such taken without the proper process law,—the payment compensation.” Angeles case, supra, the Los a clear distinction exists which specifically city was noted the court: “what the did was gоvernmental capacity—an done not in its exercise police power—but ‘proprietary quasi-private capacity’ its or right and that therefore the was subordinate to the being an corporation, occupant the latter earlier and lawful capacities recognized in the field. difference is powers pointed the difference in attendant out in decisions Manila, Vilas 416, this court. 220 U.S. 345 S.Ct. Sebastian, 491]; Russell v. L.Ed. U.S. S.Ct. 912, 882]; 58 L.Ed. 1918E Carolina L.R.A. South States, 261]; United 199 U.S. 437 S.Ct. New Drainage Gaslight Commission, 197 U.S. 453 Orleans Vicksburg Vicksburg Water S.Ct. 49 L.Ed. 762, 51 L.Ed. works 1155].” U.S. (251 ease pp. city in the instant was 39.) U.S. at police acting capacity—in exercise of governmental in its powers in the interests granted it the state—and Angeles case, city, health and welfare. system It lighting of its own. supra, sought to a establish may as only “whether question was that was noted compensation clear public right matter and without removing system by ‘space’ of its for the instrumentalities (251 systems.” U.S. relocating of other the instrumеntalities p. specifically will be observed at “It 37.) It was held: oper corporation duty of the we are not concerned with ating uncompensated obedience to public utility yield public, but police adopted protection measure taking or disturbance proposed uncompensated awith system make belongs in order to lighting what one What forbids. Amendment And this the Fourteenth another. subject grant it and was inception at remained was city, displaced system, even to be some other appro corporation compensation for the without priated.” (251 p. 40.) at U.S.

Company argues impair next state cannot the obli- gation compensation. argu- of its contracts without From this company ment that because its franchise reasons contained only relocation its installations at its one condition—the own changes highway grade—no in the event of in the imposеd. other be It will be recalled that conditions point specifically this was considered the case New Drainage Commission, Orleans Co. held 49 L.Ed. where it was that “The power, is to the health of the insofar as its exercise essential away” it be contracted community, that has been held cannot grant gas company, nothing in the even “There legally undertaking done, to limit the could be if drainage system of in the streets. establish a We State to acquired subject gas was think whatever concerned, to insofar the location of as might required regulations future interest Company rules contends and welfare.” health Gaslight ease been “dis- have set in the New Orleans forth Pipeline E. posed very tersely” by of Panhandle of case Highway Com., 294 U.S. 613 Co. v. State a Delaware cor ease involved The Panhandle L.Ed. 1090]. ways rights by purchase, of obtained, poration which had maintain conduits of to construct from ownеrs rights purchased of transporting gas. In 1930 it natural pipes telephone lines, etc. After way pipes, auxiliary Kansas, in of Highway Commission operation, were highways plans adopted for new pursuant statute places. way The rights in several company’s of across fee to use owners of the permission from the state obtained company refused highways, but the land obtained for the way. court had The state permit the use of its being were constructed highways that the new held police power of necessary the state and that the relocation company’s company expense installations at did not taking private property process constitute without due Supreme law. Court United reversed the States holding (p. 619) state court being that “A claim action power police justify taken under the the state cannot readily disregard inhibitions.” of constitutional It can important thеre are distinctions seen that between Pan Gaslight handle ease and the New Orleans case and the case purchased at In the Panhandle case the had bar. rights private from for its owners land- installations. Gaslight at bar, In the ease the case New Orleans companies granted permission to were use the subsurface already in In ease, roads existence. the Panhandle private highways new desired to construct over the state company. way previously acquired public highways does acquisition not of and construction purview come within the power but is accom plished under the of eminent domain embraced within 14 of section article I of the Constitution of the State (See State, California. Rose Cal.2d P.2d 505] 839]; Angeles, Beals Cal.2d 381 P.2d Bacich v. Board People Control, 23 Cal.2d 343 Ricciardi, 23 Cal.2d 390 Supreme overrule, Court of the not either United States did directly Gaslight case, New but indirectly, thе Orleans dis tinguished purview being as within of the exercise “New Orleans follows: Drainage Commission, 197 U.S. concerning pipes similar streets are cases controlling. agreement, laid them the were implied, actual or changes the owner would make reasonable municipality.” when (P. directed 623.) specifically pointed It was out in the New Orleans case sovereignty that the could not be con away any tracted franchise, and that such as we have under here, consideration gas must considered, be insofar as location of concerned, acquired subject installations is to have been regulations might to required such future be in the interest Supreme health and welfare. As the Court said in Burlington Chicago, Chicago, etc. R. R. Co. v. 166 U.S. “uncompensated 979], 41 L.Ed. obedience regulation to a power safety for the enacted under the taking property of the state was not without due com pensation.” holding again This approved stated and in New Orleans Public New Orleans, Service 74 L.Ed. 1115]. city company rely upon Both the and Merced Falls Gas Turner, Cal.App. etc. Co. v. 720, 721, 723, 724 P. support positions. of their The Merced case involved the light poles city relocation of some electric on a street. The company brought enjoin an city action and, to after de- clining judgment complaint, upon amend its was entered city’s defendant demurrers. court noted that “The sole appellant [company] appeals contention in both involves power compel change authorities to or make the question.” in power holding court, that the had the compel poles, relocation said: “But providing constitution, enjoyment exercise by appellant [company], grant the franchise owned did not an absolute, particular indefeasible or easement spots of poles earth where planted were originally, nor grant does the contain a hint superintendent streets, other officerin control thereof, juris- exhausted his power diction or to direct or control the use of the streets poles appellant, when the were’located in the first instance . . . and therefore such regulations, or the absence of them, general cannot limit or power granted annul the to the mu- nicipality, to direct and control the manner in which the streets shall be used, and the franchise exercised. Courts will not stay municipal power hesitate to the arm of any attempt when deny to curtail or the constitutional is made manifest or a clear abuse of they discretion is shown. But will as unhesitatingly frown the doctrine that the constitutional

provision question must as an be construed abdication or part to widen, straighten, denial beautify on the of cities compel improve sidеwalks, and to every kind owners of class and to conform all general regulations redounding good.” reasonable pany Com language following relies on from the same case: irreparable injury “It the averment of contended that sufficiently regulation is and con shows that unreasonable already fiscatory. damage which accrued is estimated has why $1,000, guess sum total of at damage and it difficult poles may all resulting from the removal of the not easily compensated.” this com From be estimated argues holding is the pany that of the case that the damages accruing by reason of the relo there was entitled as contended poles. The ease be construed cation cannot relocating by company question of the cost since the for only there poles made involved. The contention was not compel com was that did have poles any which did not pany to statement relocate its Company clearly cites question is dictum. bear support position, of which is none many other in cases County, Joaquin 148 point. Gas etc. Co. v. San in Stockton 174], 511, 5 held 54, Ann. L.R.A.N.S. 313 P. 7 Cas. Cal. [83 it was to used was where a franchise was situs where 875, Ann. 668 P. Russell, 163 Cal. taxed; Matter [126 company had no vested gas a 152], held that 1914A Cas. laying by it previously for used streets not 160 106 Hopkins, Cal. gas mains; Western Union Tel. Co. franchise as a the situs of 557], concerned with P. was [116 property; Co., Pasadena v. Pasadena etc. taxable South Land 490], 579 P. involved the sale and transfer of 152 Cal. a [93 by private supplying corporation franchise for the of water municipal County corporation; Angeles Los Southern an Co., 773], Tel. 32 378 P.2d involved at Cal. Cal.2d [196 empt by from to collect a tax which the defendant t franchise from the state 536 of obtained a under section had Keppelmann, In Matter 166 Cal. 770 Civil Code. of ordinance municipal provided that writ 346], P. permission had to be obtained from the ten board occupied be made in streets before excavations could works gas company for its by and conduits. This court company’s rights the constitutional held subject to absolute” but the direction of grant were “not State, Rose v. 19 Cal.2d of such streets. those control

735 proceed inverse condemnation 505], involved P.2d P.2d Angeles, 19 Cal.2d Los ings; Archer v. 1], erroneously under the decided doctrine reality only but inverse involved condemnation under I, article section of the California Constitution. House v. Angeles County Dist., Los Flood Control 25 Cal.2d 384 [153 950], P.2d an action in inverse involved condemnation for damages by plaintiff negligence sustained because of the planning defendant and construction of certain Angeles flood control channel work the Los River. This supra. ease in City case, effect overruled the Archer Hossom v. Long Cal.App.2d Beach, 787], ‍​​‌​​‌​​​​​​‌‌​‌‌‌‌​‌‌‌​‌​‌​‌​​​‌‌​​‌‌‌‌‌‌​​‌​​‌‍in P.2d an volved аction to redeem land which had been sold for delinquent Angeles Klinker, taxes. Cal. 148], A.L.R. involved condemnation buildings uses held that the and other land determining fixtures on land must be considered in compensation. etc. owner’s Dist. v. Sacramento Pacific special Cal.App.2d C. & E. proceeding in eminent domain under the Public Utilities Act. Company’s arguments concerning statutory authority for payment compensation utility relocations are of no avail only point necessary that no such statu- here and out tory authority to cover the situation with which we exists here concerned. compelled join foregoing I am with the For the reasons judgment

majority for a reversal of the with direc- and vote judgment trial for the defendant tions to the court to enter city. judgment McCOMB, I dissent. I would affirm the J. Appeal stated the District Court Southern reasons Angeles, (Cal.App.) Gas Co. California

P.2d 735. Sehauer, J., concurred. petition rehearing

Respondent’s September for a was denied Sehauer, J., MeComb, J., opinion 24, 1958. were petition granted. that the should be

Case Details

Case Name: Southern California Gas Co. v. City of Los Angeles

Court Name: California Supreme Court

Date Published: Aug 29, 1958

Citation: 329 P.2d 289

Docket Number: L.A. 24909

Court Abbreviation: Cal.