Los Angeles Gas & Electric Corp. v. Department of Public Service

WASTE, P. J.

Plaintiff brought this action to enjoin the department of public service of the city of Los Angeles, and the board of public service commissioners of that city, from

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erecting, constructing, operating, or maintaining an electrical distributing system in the city of Los Angeles, until such time as the Railroad Commission of the state should issue a certificate of “public convenience and necessity” therefor. The lower court rendered judgment in favor of the defendants and plaintiff has appealed.

The plaintiff is a corporation engaged, under proper franchises, in generating, furnishing, and distributing electric energy to consumers in the city of Los Angeles and elsewhere for compensation, and has erected and constructed poles, wires, conduits, and other electrical apparatus and appliances in the streets and public places of that city for the purpose of carrying <m its business. Under the powers conferred by the state constitution (art. XI, see. 19) and its own charter, the city of Los Angeles constructed an aqueduct system for the purpose of providing for the use of its inhabitants an additional supply of water from the watershed of the Owens River. This aqueduct, by reason of the fact that its intake is more than two thousand feet higher than its southerly terminus in the city of Los Angeles, affords opportunities along its course for the development of electric energy from the fall or flow of the water. Since March 23, 1912, the city, through its board of public service commissioners, has been engaged in the construction of works for generating electric energy from the flow of water in the aqueduct, and for transmitting it into the city, where plants and a complete system have been constructed for distributing such energy for domestic, commercial, and industrial uses and purposes, including public street-lighting. More than eight million dollars have been expended in this enterprise. At the time this litigation was initiated, the city of Los Angeles, in competition with plaintiff, was supplying some fifteen thousand consumers with electric energy, and was furnishing approximately forty per cent of all public street-lighting in the city.

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In bringing this action for an injunction, the appellant takes the position that the respondents, in constructing and operating an electrical distributing system for the purpose of furnishing and supplying electric energy to the inhabitants of the city of Los Angeles, are not performing governmental functions, but are acting solely in a proprietary capacity to the same extent as the plaintiff and