Logan v. City of Glendale

[170]

NOURSE, P. J.

Plaintiffs sued for an injunction to restrain defendant from proceeding under the Vrooman Act (Stats. 1885, p. 147; Peering’s Gen. Laws, Act 8194) to improve portions of Brand Boulevard with an ornamental electric lighting system. Defendants had judgment and the plaintiffs have appealed upon typewritten transcripts.

In their opening brief the appellants assigned six questions as involved on the appeal. The first assignment reads: “Is an ornamental electric street lighting system a public utility or a part of the plant and equipment of a public utility!” As our answer to this question requires an affirmance of the judgment it is unnecessary to pass upon the other assignments. The charter of the city of Glendale authorizes the city authorities to construct, maintain and operate public utilities and for that purpose creates a public service department and a public service sinking fund, which fund “shall be used only for the replacement, betterment,

and

extensions of the plants

and

equipment of said public utilities respectively”. (Art. XI, sec. 17, Stats. 1931, p. 2695.) Article XXIII, section 6, of the charter provides: “The improvement, widening and opening of streets, the planting of trees and all public improvements not specified in this charter may be done, and assessments therefor may be levied in conformity with and under authority conferred by general laws.” Section 2 of the same article provides that “all general laws of the state applicable to municipal corporations, now or hereafter enacted, and which are not in conflict with the provisions of this charter or with ordinances or resolutions adopted in pursuance of this charter, shall be applicable to the city”. Hence, it is conceded, as it must be, that if the improvement contemplated by the city authorities is a street improvement as distinguished from a replacement or an extension of the plant of an existing public utility, the provisions of the Vrooman Act are applicable.

The public utility owned and operated by the city is the business of acquiring and distributing electric energy for the use of the public generally and for the city in its governmental capacity. In the operation of this public utility the city acts in a proprietary capacity and in this respect is no different from