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ferred power to "license, tax and regulate" persons engaged in a large number of specified occupations, "and all other business, trades, avocations or professions whatever". Telephone companies are not included in the enumeration, but telegraph companies are. The court held that such companies are "ejusdem generis" with telegraph companies and therefore included in the words of the final clause. The opinion then considers whether the power to "regulate" gives the right to fix rates. This question was answered in the negative, the court basing its conclusion upon the fact that the charter gives express power to establish ferry rates; to fix the rates for carriage of persons, and of wagonage, drayage and cartage of property; to regulate the price of gas, and to regulate and control railways within the city as to their fares, hours and frequency of trips. "These express powers to fix prices, fares and charges, in these specified cases," says the court, "are following by no general words. With this specific enumeration of cases where the city may regulate the compensation to be charged, it impliedly appears that such a power was not intended to be given in other cases." Finally, it is held that the result is not affected by a "general welfare" clause contained in the charter.

In City of Stillwater v. Lowry, 83 Minn. 275, the question was whether villages having a population of less than three thousand had power to grant franchises for street railways. The statute conferred upon the councils of such villages authority to lay out, open or change streets, to prevent the incumbering of streets, to ordain and establish "all such ordinances and by-laws for the good government and order of the village, the protection of public and private property, the benefit of trade and commerce as they shall seem expedient"; to make, erect, establish and control waterworks; also to build and control electric light plants, and to govern the streets, highways and public places. While conceding that power to control and govern the streets might, in itself, be sufficient to authorize the council to permit the use of streets for street railway purposes, the court concludes that no such authority was given by the particular statute in question, for the reasons, (1) that power to provide for railways is expressly given to other municipalities, and (2)—a ground directly applicable here--that the express grant of power to authorize water and light plants indicates that power to authorize street railways was not intended to be covered by the general grant of power to control the streets.

The view that those who framed and adopted the Stockton charter of 1889, and the amendments of 1905, did not intend to vest in the city power to authorize private persons or corporations to enter into the business of furnishing light to the inhabitants, or even to use the streets for that purpose, is strengthened by a consideration of the constitutional provisions then in force. By section 19 of article XI, as it read when this charter was made and amended, any individual or company incorporated for that purpose was given the privilege, in cities which had no public light or water works, of using the public streets, and of

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laying down pipes and conduits therein, for the purpose of supplying the city and its inhabitants with light or water. The only limitations upon the privilege were that the city might, through its appropriate officer, have direction of the work in the streets. and might make regulations for damages and regulate charges. Here was a direct grant or offer of a grant by the state, to all who chose to avail themselves of it, of all substantial rights in cluded in a franchise to operate a light or water plant in every city in the state. (In re Johnston, 137 Cal. 115; Stockton Gas & E. Co. v. San Joaquin, 148 Cal. 313; People v. L. A. County, 150 Cal. 368; Ex parte Keppelmann, 166 Cal, 770.) While this constitutional provision remained in force, its effect could not be destroyed by statute or charter. Indeed, the rights conferred by it, when once vested by an entry upon the streets and the furnishing of light or water, could not be taken away by amendment or repeal of the constitutional grant. (Ex parte Keppelmann, supra; Russell v. Sebastian, 233 U. S. 195.) There was every reason, therefore, for omitting from the charter any provision authorizing the grant of franchises by the city to light or water companies.

[3] Section 19 of article XI of the constitution was amended in 1910, and the amended section was in force when the Public Utilities Act took effect. It is contended by the petitioner that, regardless of the Stockton charter, the amended constitutional provision gave to every city the power to grant franchises of the character here involved. The amendment evidenced a change in the policy which the state had declared in adopting the constitution of 1879, the policy, that is to say, of "making these grants (of franchises to use the streets for distributing water and light) directly through the constitution itself instead of permitting them to be made by the legislature or by municipalities acting under legislative authority". (Russell v. Sebastian, supra.) The amended provision, after declaring the right of municipalities to establish and operate their own works for certain public utilities, including light and power, goes on to state that "persons or corporations may establish and operate works for supplying the inhabitants with such services upon such conditions and under such regulations as the municipality may prescribe under its organic law, on condition that the municipal government shall have the right to regulate the charges thereof". The language just quoted has been considered by this court in Matter of Russell, 163 Cal. 668. Our judgment in the case was reversed by the supreme court of the United States in Russell v. Sebastian, supra, but the only question presented to that court was the extent of the rights vested in corporations which had occupied the streets of a city prior to the amendment of section 19 of article XI. On the construction of the section, as amended, and its application to utilities which had not undertaken to commence operations while the old section was in force, our decision in Matter of Russell remains unaffected by the action of the higher court. The claim of the petitioner in that case was that the new section made a direct grant to persons or corporations of the right to enter upon the

streets of a city to operate the works specified in the section, subject only to the power of the city to prescribe conditions relating to the manner of establishing and operating the works. With that interpretation this court did not agree. After reviewing the conditions which had existed before the amendment, we concluded that section 19 of article XI had been changed for the very purpose of declaring a new policy with respect to public utilities in cities. Instead of seeking, as the old section had done, to destroy the possibility of monopoly, the new section was adopted under the influence of an opinion, more or less generally held, that public utilities in cities should be conducted either by the municipality or by a properly regulated monopoly. "The amendment", says the court in the Russell case, "shows an intention to allow this policy to be determined by each city in its own behalf." The intention is found in the provision that the work may be established and operated upon such conditions and under such regulations as the municipality may prescribe. The conditions and regulations are to be such as the municipality may precribe "under its organic law". It seems clear to us that this language contemplates a power of control exercised, either in accordance with conditions and regulations defined in the organic law itself, or in accordance with conditions and regulations defined by some municipal agency to which the necessary authority has been given by the organic law of the city. In other words, the section does not, ex proprio vigore, give to all cities the power to regulate public utilities operating within their borders; it merely places the utilities under such control as may be provided for by the charter or other organic law of the city. The contrary view was suggested in Ex parte Russell, but a positive expression on the point was said to be unnecessary, since in that case the charter of the city in question (Los Angeles) contained adequate provisions respecting the granting of franchises. After a further study of the new section, we cannot be lieve that the words conferring on cities a power to control certain public utilities "under their organic law" constitutes a grant of unlimited or specific power over such utilities (except in the matter of rates), to any city whose organic law contains no provision for the exercise of such power. It would follow, from the foregoing, that the amendment of section 19 of article XI did not vest in the city of Stockton any power which would be impaired by section 50 of the Public Utilities Act.

Finally, the petitioner claims that the "Broughton Act" (Stats. 1905, p. 777), gave to every city authority to grant franchises for transmitting electric light and power. But we think it clear that this act merely places restrictions upon the granting of franchises, where the power to grant such franchises exists otherwise. As was said in Sunset Tel. & Tel. Co. v. Pasadena, 161 Cal, 265, 272, the "whole purpose" of the act "was to prescribe the method and conditions upon which the franchises included within its terms might be granted by the legislative body authorized by law to make the grant". The act does not authorize any board or council to grant a franchise.

[1] The result of all that has been said is that, in our judgment the city of Stockton did not, when the Public Utilities Act was passed or when it became effective, have power to grant to electric corporations franchises permitting them to furnish electricity to the inhabitants of the city, if indeed, it had the power to grant the limited franchise or right to use the streets for that purpose. It follows that the requirement of a certificate of public convenience and necessity, contained in section 50 of the act, did not impair any power of control vested in the city. This conclusion disposes of the case, since it compels the holding that the railroad commission did not exceed its jurisdiction in taking cognizance of the application of the petitioner for a certificate or in denying such certificate.

The orders under review are affirmed.

We concur:







Crim. No. 1825. In Bank. March 2, 1915.

In the Matter of the Application of JOHN COOMBS for a Writ of Habeas Corpus.

[1] INTOXICATING LIQUORS-REGULATION OF SALE WITHIN COUNTY -POWER OF BOARD OF SUPERVISORS.-The board of supervisors of a county in the exercise of its police power may impose upon the sale within such county of vinous and other liquors containing alcohol, any restrictions which are not in conflict with general laws.

[2] ID. MUNICIPAL CORPORATIONS-ORDINANCE-CONTRACTS FOR SALE OF LIQUORS-PROHIBITION WITHIN VOTING PRECINCT SCOPE OF ORDINANCE SALES WITHIN PROHIBITED TERRITORY.-A municipal ordinance which forbids a citizen under the conditions set forth, to "solicit, take or receive any order for the sale or delivery of any intoxicating liquors" in any voting precinct in which a retail liquor dealer's license cannot be obtained, places no ban upon the manufacture of wines within the precinct nor the sale of such products therein for delivery in territory outside that part of the county in which such traffic is prohibited, but only prevents soliciting and the making of contracts of sale in such voting precinct for the delivery of intoxicants therein.

[3] ID.-ID.-ID.-SALE OF LIGUORS IN VOTING PRECINCTS-CONDITIONAL PROHIBITION-VOTE OF MAJORITY OF ELECTORS-ACT NOT IN CONFLICT WITH WYLLIE LAW.-A municipal ordinance prohibiting the granting of any license to sell intoxicating liquors in any voting precinct in which at the last general election a majority of the electors of the precinct voted against the granting of liquor licenses therein, is not in conflict with the Wyllie local option law as providing a different scheme of local option from that authorized by such law.

Application for Writ of Habeas Corpus prayed for to be directed against W. A. Hammel, Sheriff of the County of Los Angeles.

For Petitioner-Byron C. Hanna, Joseph Musgrove, Charles W. Lyon; W. L. Wright of counsel.

For Respondent-A. J. Hill, J. D. Fredericks, Percy V. Ham


Petitioner has been arrested upon a warrant issued as the result of the filing of a complaint wherein he is charged with violating a certain ordinance of the county of Los Angeles. More specifically the charge is that John Coombs did "at a place other than a fixed licensed place of business for the sale of intoxicating liquors, to-wit: in Lamanda Park Precinct, in Los Angeles County, solicit, take, and receive an order for the delivery of, and did then and there deliver intoxicating liquors, to-wit, three (3) gallons of wine to one A. L. Bradley, at his permanent residence in Lamanda Park Precinct, said precinct being then and there a voting precinct in which a retail liquor dealer's license was not and could not be obtained".

The ordinance in question was adopted by the supervisors of Los Angeles county in 1910. It is known as ordinance No. 245, (new series) and is entitled "An Ordinance Regulating and Licensing Certain Kinds of Business". By the first section of this by-law it is made unlawful for any person to conduct any business specified therein without first procuring the prescribed license. By section 18 the term "intoxicating liquors" is defined and "vinous liquors" are included within the definition. It is provided, among other things, in the 19th section that: "No person shall sell any intoxicating liquors in any quantity whatsoever, except at a fixed place of business, or without first obtaining a license therefor under the provisions of this ordinance. No person shall, in any voting precinct in which a retail liquor dealer's license cannot be obtained, as hereinafter provided, solicit, take or receive any order for the sale or delivery of any intoxicating liquors; provided that nothing herein contained shall be deemed to prohibit the soliciting, taking, or receiving of such orders by a duly licensed winery keeper or hotel or restaurant liquor dealer at his licensed place of business."

Section 22 establishes the method to be adopted by those seeking licenses and the next section establishes the procedure to be followed by the board of supervisors in hearing and passing upon such applications. That part of the section which requires particular examination by us in the decision of the questions arising in this proceeding is as follows: "No application for either a wholesale or retail liquor dealer's license, or a * winery keeper's license, or a hotel or restaurant liquor dealer's license, shall be granted unless at the last preceding general election at which the question of granting licenses of the kind applied for was submitted to the people, the majority of the votes cast upon the question of granting licenses of the kind applied for, in the voting precinct in which the business is proposed to be carried on, was in favor of granting such licenses. For the purposes of this ordinance the respective voting precincts of the county and the boundaries thereof shall be deemed to continue unchanged from any general election until the next general election thereafter."

Section 25 directs that at every general election four questions

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