[251 U.S. 32, 33] Mr. W. B. Mathews, of Los Angeles, Cal., for appellants.
Messrs. Paul Overton and Herbert J. Goudge, both of Los Angeles, Cal., for appellee.
Mr. Justice McKENNA delivered the opinion of the Court.
The appellant city is a municipal corporation of the State of California and the other appellants are its officers, having official relation to it and its rights and powers.
The appellee is a California corporation invested with and in exercise of a franchise for generating and selling electricity through a system of poles and wires and other works in the public streets of Los Angeles, among others, in that known as York Boulevard.
It, the appellee-to which we shall refer as the corporation-brought this suit in the District Court to declare invalid and restrain the execution of an ordinance of the city providing for a municipal electric street-lighting system and making way for it in such way, it is charged, that it obstructed, trespassed upon and made dangerous [251 U.S. 32, 34] the system of the corporation in violation of its rights under the Constitution of the United States.
The District Court granted the prayer of the bill upon the grounds relied on and hence the appeal from its decision direct to this Court.
The ordinance attacked is very long by reason of its repetitions. It, however, can be intelligibly reduced to a few provisions. It was passed March 6, 1917, and approved the next day, and declares in its title its purpose to be to provide for the removal and relocation of poles and other property in the public streets of the city 'when necessary in order that the municipal electrical street lighting system may be constructed, operated and maintained.' Such system and its installation 'as speedily as may be practicable' is declared necessary 'for the public peace, health and safety.'
It is recited that certain 'fixtures, appliances and structures' ( they are enumerated) are maintained in the streets and it is necessary 'in order that sufficient space may be secured for the said municipal electrical system ... and that the work of constructing and establishing the same may be carried on, to provide for the removal or relocation of poles and other properties so maintained by such persons and corporations.'
It is therefore ordained that (section 1) whenever it shall appear to the Board of Public Works that the removal or relocation kof such 'fixtures, appliances or structures' (there is an enumeration again which we omit as useless repetition) is necessary in order of such 'fixtures, appliances or structures' the Board shall give notice to the person, firm or corporation owning or controlling the property to remove or relocate the same. The notice to designate the property to be removed and the place to which it shall be removed, and it shall be the duty of such person, firm or corporation to comply with the notice within five days of its receipt. To fail or refuse to so [251 U.S. 32, 35] comply or to diligently prosecute the work of removal is made unlawful ( sections 2 and 3) and (section 4) made a misdemeanor punishable by a fine of not more than $500 or by imprisonment in the city jail for a period of not more than six months, or by both such fine and imprisonment. Each day's delay is made a separate offense.
In case of failure to remove or prosecute the work of removal the Board of Public Works is given power to do what the notice directs. ( Section 5.)
By section 6 the dependency of the city upon private contracts for lighting the public streets and other public places is declared, some of which contracts, it is said, have expired and all will have expired by July, 1917, thus making the completion of the municipal system necessary to provide for lighting the streets without interruption and the removal or relocation of the appliances owned or controlled by various persons, firms or corporations immediately necessary in order that the city may complete and install its system. And it is declared that the 'ordinance is urgently required for the immediate preservation of the public peace, health and safety.'
The ordinance was preceded by acts of interference by the city with the property of the corporation in other streets and also in York Boulevard, which interference was enjoined by interlocutory and final decree by the Superior Court of Los Angeles County in a suit brought by the corporation-the city not defending. And it was interference, not displacement, and the court's decree was adapted to the extent of the interference. The decree as to other streets than York Boulevard was as follows:
As to York Boulevard the decree was as follows:
The decree contained a provision upon which the city bases a contention, or rather a suggestion, to which we shall presently refer. The provision is as follows:
The ground or basis of the ordinance of March 6, 1917, here involved is the same as that of the interference in the suit in the state court, that is, the right to displace the corporation's property in order that the municipal system may be operated or erected. There is no attempt here, as there was no attempt in that suit, at absolute displacement. The order of the Board of Public Works, issued in accordance with the direction of the ordinance, required the corporation to change or shift or lower its wires to [251 U.S. 32, 37] the detriment of their efficient use, as it is contended. There is some conflict as to the extent and effect which, however, we are not called upon to reconcile. It was stipulated:
And it was testified that if the city in constructing its system proceeds as it has done in ordering the removal of poles and wires, it will cost the corporation between $50,000 and $60,000; but passing by the particular instance of interference and considering the ordinance's broad assertion of right, the contentions of the city and the corporation are in sharp contradiction.
We say 'the ordinance's broad assertion of right' to distinguish the narrower right of the city to erect a system of its own. Of the latter right there is no question. The District Court conceded it, indeed praised the project, but decided that it could not be exercised to displace other systems, without compensation, occupying the streets by virtue of franchises legally granted. Thus the only question is whether the city may as matter of public right and without compensation clear a 'space' for the instrumentalities of its system by removing or relocating the instrumentalities of other systems. The city asserts the affirmative- asserts the right to displace other systems as an exercise of the police power, and, further, as an incident of its legislative power. It is further asserted that these powers are attributes of government, and that their exercise when not palpably pably arbitrary, is not subject to judicial interference, and that--
In what way the public peace or health or safety was imperiled by the lighting system of the corporation or relieved by its removal or change, the court was unable to see and it is certainly not apparent. The court pointed out that there were several lighting systems in existence and occupying the streets and that there was no contest, or disorder or overcharge of rates or peril, or defect of any kind, and therefore concluded that the conditions demonstrated that while the city might install its own system there was no real 'public necessity' arising from consideration of public health, peace or safety requiring the city to engage in the business of furnishing light.
The court reasoned and concluded that what the city did was done not in its governmental capacity-an exertion of the police power-but in its 'proprietary or quasi [251 U.S. 32, 39] private capacity' and that therefore the city was subordinate in right to the corporation, the latter being an earlier and lawful occupant of the filed. The difference in the capacities is recognized and the difference in attendant powers pointed out in decisions of this court. Vilas v. Manila, 220 U.S. 345 , 31 Sup. Ct. 416; Russell v. Sebastian, 233 U.S. 195 , 34 Sup. Ct. 517, L. R. A. 1918E, 882, Ann. Cas. 1914C, 1282; South Carolina v. United States, 199 U.S. 437 , 26 Sup. Ct. 110, 4 Ann. Cas. 767; New Orleans v. Drainage Comm., 197 U.S. 453 , 25 Sup. Ct. 471; Vicksburg v. Vicksburg Waterworks Co., 206 U.S. 496, 508 , 27 S. Sup. Ct. 762
The city's contentions are based on a confusion of these capacities and the powers or rights respectively attributed to them and upon a misunderstanding of the reservations in the decree of the state court. The reservations were made only in prudence, not to define the existence or extent of powers, and forestall their challenge, but to leave both to the occasion when either of them might be asserted or denied. And it is clear that it was not intended to confound the capacities in which the city might act and the relation of the city's acts to those capacities.
It is not necessary to repeat the reasoning or the examples of the cases cited above, by which and in which the different capacities of the city are defined and illustrated. A franchise conveys rights and if their exercise could be prevented or destroyed by a simple declaration of a municipal council, they would be infirm indeed in tenure and substance. It is to be remembered that they come into existence by compact, having, therefore, its sanction, urged by reciprocal benefits, and are attended and can only be exercised by expenditure of money, making them a matter of investments and property, and entitled as such against being taken without the proper process of law-the payment of compensation.
The franchise of the present controversy was granted prior to 1911 and hence has the attributes and rights described in Russell v. Sebastian, supra. Its source, as was that of the franchise in that case, is the Constitution of [251 U.S. 32, 40] the State and is that 'of using the public streets and thoroughfares thereof ... for introducing into and supplying' a city 'and its inhabitants either with gaslight or other illuminating light.' We said of such that--
The 'breath of the offer was commensurate with the requirements of the undertaking which was invited. The service to which the provision referred was a community service. It was the supply of a municipality- which had no municipal works-with water or light.'
We can add nothing to this definition of rights, and, we may repeat, they did not become immediately violable or become subsequently violable.
It will be observed that we are not concerned with the duty of the corporation operating a public utility to yield uncompensated obedience to a police measure adopted for the protection of the public, but with a proposed uncompensated taking or disturbance of what belongs to one lighting system in order to make way for another. And this the Fourteenth Amendment forbides. What the grant was at its inception it remained and was not subject to be displaced by some other system, even that of the city, without compensation to the corporation for the rights appropriated.
We think, therefore, that the decree of the District Court protecting the corporation's rights from disturbance under the ordinance in question must be and it is
Mr. Justice PITNEY and Mr. Justice CLARKE dissent.